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In re D.T.L
Factual and Procedural Background
Respondent was the biological father of the juveniles, and petitioner was their biological mother. After a 2006 domestic-violence report, petitioner ended her relationship with respondent and left his home. Respondent was later convicted of conspiracy to traffic cocaine, imprisoned, and released in September 2010. [1][2]
After respondent’s release, petitioner obtained a domestic-violence protection order prohibiting him from contacting her or the juveniles. Respondent then filed a custody complaint seeking secondary custody and visitation. Petitioner filed a petition to terminate his parental rights, alleging failure to support, abandonment, and neglect. [3]
Following a 23 May 2011 hearing, the trial court terminated respondent’s parental rights based on willful failure to provide support and willful abandonment. Respondent appealed. [4][5]
Legal Issues Presented
- Whether the trial court properly found grounds to terminate respondent’s parental rights for willful failure to pay for the juveniles’ care, support, and education. [6][7][8]
- Whether the trial court properly found grounds to terminate respondent’s parental rights for willful abandonment. [9][10]
Arguments of the Parties
Respondent-Father’s Arguments
- Respondent argued that the trial court erred in finding grounds for termination based on his failure to provide support. [6]
- He also argued that the trial court erred in finding that he willfully abandoned the juveniles. [9]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| In re Shepard, 162 N.C. App. 215 | Termination findings must be supported by clear, cogent, and convincing evidence and must support the conclusions of law. | The court identified this as the applicable standard of review. [11] |
| In re Clark, 72 N.C. App. 118 | The case was cited as the source of the termination-of-parental-rights standard quoted in In re Shepard. | The court relied on the quoted standard in reviewing the trial court’s findings and conclusions. [11] |
| In re S.R.G., 195 N.C. App. 79 | Supported factual findings are binding on appeal; abandonment findings must show conduct wholly inconsistent with a desire to maintain custody. | The court applied these principles in assessing the support and abandonment grounds. [11][12] |
| In re S.N., 194 N.C. App. 142 | Conclusions of law are reviewed de novo. | The court used de novo review to evaluate the trial court’s legal conclusions. [11] |
| In re Roberson, 97 N.C. App. 277 | For termination based on failure to support, the petitioner must prove an enforceable support order existed during the year preceding the petition. | The court held that no support-related decree or custody agreement was alleged, proved, or found. [8][13] |
| In re Adoption of Searle, 82 N.C. App. 273 | Willful abandonment is a factual question and involves conduct manifesting an intent to forego parental duties and relinquish parental claims. | The court concluded that respondent’s custody action demonstrated a desire to maintain custody rather than an intent to abandon the juveniles. [10][14] |
Court's Reasoning and Analysis
The court reviewed the termination order under the standard requiring clear, cogent, and convincing support for factual findings, while reviewing legal conclusions de novo. [11]
Regarding failure to support, North Carolina law required a judicial decree or custody agreement requiring respondent to pay for the juveniles’ care, support, and education. The petition did not allege such an instrument, no evidence established one, and the trial court made no finding that one existed. Therefore, the support ground was legally unsupported. [7][8][13]
Regarding abandonment, the relevant statutory period was the six months immediately preceding the 8 February 2011 petition, from 8 August 2010 through 8 February 2011. Although the trial court found that respondent had not maintained contact since March 2007, respondent was released from incarceration in September 2010, was prohibited from contact by a protection order in October 2010, and filed a custody action in November 2010 seeking custody and visitation. [10][14]
The custody action undermined the finding of willful abandonment because it demonstrated respondent’s desire to maintain custody. In light of the protection order and his custody filing, the evidence did not establish a willful determination to forgo parental duties and relinquish parental claims. [12][14]
Holding and Implications
REVERSED. The Court of Appeals held that neither the failure-to-support ground nor the willful-abandonment ground was supported by the trial court’s findings and the evidence. It therefore reversed the order terminating respondent’s parental rights. [15][16][17]
The direct effect was restoration of the order’s invalid termination decision as to respondent’s parental rights. The opinion discusses no broader implications or new precedent.
McCULLOUGH
Appeal by respondent from order entered 15 June 2011 by Judge A. Elizabeth Keever in Cumberland County District Court. Heard in the Court of Appeals 6 February 2012. No brief filed for petitioner-mother appellee. Assistant Appellate Defender J. Lee Gilliam, for respondent-father appellant. Melinda C. Flinn for guardian ad litem appellee.
McCULLOUGH, Judge.Respondent appeals from an order terminating his parental rights to his minor children, D.T.L., T.S.L., and A.M.L. (“the juveniles”). Because neither of the grounds found by the trial court to terminate respondent's parental rights are supported by its findings of fact, we reverse the trial court's order.
Respondent is the biological father and petitioner is the biological mother of the juveniles, although they never married. Respondent and petitioner were living together in 2006, when the Robeson County Department of Social Services (“RCDSS”) received a report of domestic violence in the home. After investigating the report, RCDSS informed petitioner that she risked the removal of the juveniles from her custody due to domestic violence and misuse of drugs and alcohol in the home. In response, petitioner severed her relationship with respondent and left his home in February 2006.
In January 2007, respondent was arrested for trafficking cocaine and conspiracy. In October 2007, respondent entered a guilty plea to conspiracy to traffic cocaine and was sentenced to a term of 35 to 42 months' imprisonment. Respondent was released from incarceration in September 2010.
Shortly after respondent's release, petitioner sought and obtained a domestic violence protection order against respondent. The order prohibited respondent from contacting either petitioner or the juveniles. On 19 November 2010, respondent filed a child custody complaint against petitioner, seeking joint custody of the juveniles. In his complaint, respondent asked the court to grant petitioner “primary” custody of the juveniles, and allow him to have “secondary” custody of the juveniles with “reasonable and liberal visitation.” Petitioner filed an answer and counterclaim to respondent's complaint on 8 February 2011. That same day, petitioner also filed a petition to terminate respondent's parental rights to the juveniles. In her petition, petitioner alleged grounds existed to terminate respondent's parental rights in that he: (1) willfully failed to pay for the care, support and education of the juveniles; (2) willfully abandoned the juveniles; and (3) neglected the juveniles.
After a hearing on 23 May 2011, the trial court entered an order terminating respondent's parental rights to the juveniles. The trial court found grounds existed to terminate respondent's parental rights in that he willfully failed to pay for the care, support, and education of the juveniles and he willfully abandoned the juveniles. Respondent appeals.
“ ‘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 Shepard, 162 N.C.App. 215, 221–22, 591 S.E.2d 1, 6 (2004) (quoting In re Clark, 72 N.C.App. 118, 124, 323 S.E.2d 754, 758 (1984)). “Findings of fact supported by competent evidence are binding on appeal even though there may be evidence to the contrary.” In re S.R.G., 195 N.C.App. 79, 83, 671 S.E.2d 47, 50 (2009). However, “[t]he trial court's conclusions of law are fully reviewable de novo by the appellate court.” In re S.N., 194 N.C.App. 142, 146, 669 S.E.2d 55, 59 (2008) (internal quotation marks and citation omitted).
Respondent first argues the trial court erred in concluding grounds existed to terminate his parental rights because he failed to provide support to the juveniles. We agree.
Grounds exist to terminate parental rights where:
One parent has been awarded custody of the juvenile by judicial decree or has custody by agreement of the parents, and the other parent whose parental rights are sought to be terminated has for a period of one year or more next preceding the filing of the petition or motion willfully failed without justification to pay for the care, support, and education of the juvenile, as required by said decree or custody agreement. N.C. Gen.Stat. § 7B–1111(a)(4) (2011) (emphasis added). In applying N.C. Gen.Stat. § 7A–289.32(5), the identical predecessor to N.C. Gen.Stat. § 7B–1111(a)(4), this Court held that, “[i]n a termination action pursuant to this ground, petitioner must prove the existence of a support order that was enforceable during the year before the termination petition was filed.” In re Roberson, 97 N.C.App. 277, 281, 387 S.E.2d 668, 670 (1990).
Here, the petition did not allege that there was a decree or custody agreement which required respondent to pay for the care, support, and education of the juveniles. Moreover, no evidence was introduced at the hearing that any such decree or agreement existed, and the trial court did not find that any decree or agreement existed. Accordingly, we hold the trial court erred in concluding this ground existed to terminate respondent's parental rights.
Respondent next argues the trial court erred in concluding grounds existed to terminate his parental rights to the juveniles because he willfully abandoned the juveniles. We agree.
A trial court may terminate parental rights upon concluding that “[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. Gen.Stat. § 7B–1111(a)(7) (2011). “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 Adoption of Searle, 82 N.C.App. 273, 276, 346 S.E.2d 511, 514 (1986). “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. at 275, 346 S.E.2d at 514. This Court has further held:
A judicial determination that a parent willfully abandoned her child, particularly when we are considering a relatively short six month period, needs to show more than a failure of the parent to live up to her obligations as a parent in an appropriate fashion; the findings must clearly show that the parent's actions are wholly inconsistent with a desire to maintain custody of the child. In re S.R.G., 195 N.C.App. at 87, 671 S.E.2d at 53.
Here, the trial court's ultimate finding of fact regarding the ground of abandonment states that “[r]espondent has failed to maintain contact with the Juveniles since March 2007. He has wilfully abandoned the Juveniles.” However, this ultimate finding is not supported by clear, cogent and convincing evidence. Petitioner filed her petition to terminate respondent's parental rights on 8 February 2011, thus the relevant six-month statutory period was from 8 August 2010 to 8 February 2011. Respondent was released from incarceration in September 2010, and on 6 October 2010, petitioner obtained a domestic violence protection order which prohibited respondent from contacting either petitioner or the juveniles. On 19 November 2010, respondent filed a custody action against petitioner in which he asked the court to award “primary” custody to petitioner and grant him “secondary” custody and “reasonable and liberal visitation.” Respondent's institution of a civil custody action undermines the trial court's finding and conclusion that he willfully abandoned the juveniles. Having been prohibited by court order from contacting either petitioner or the juveniles, respondent's filing of a civil custody action clearly establishes that he desired to maintain custody of the juveniles and cannot support a conclusion that he had a willful determination to forego all parental duties and relinquish all parental claims to the juveniles. Accordingly, we hold the trial court erred in concluding respondent willfully abandoned the juveniles pursuant to N.C. Gen.Stat. § 7B1111 (a)(7).
Because we hold the trial court erred in concluding that grounds existed to terminate respondent's parental rights pursuant to both N.C. Gen.Stat. § 7B–1111(a)(4) and (7), we reverse the trial court's order terminating respondent's parental rights.
Reversed. Chief Judge MARTIN and Judge BRYANT concur.
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