In re A.G.D., 374 N.C. 317 (2020)

There is a dissent
(Earls, J.)
  • Facts: In 2014, mother obtain a child custody order granting her sole legal and physical custody of the children and no contact between the children and the father without a further order of the court. Father was incarcerated on pending charges for child related sex offenses. In 2018, mother filed a TPR petition on the grounds of failing to pay child support and abandonment. The TPR was granted on the ground of willful abandonment, and respondent father appeals arguing he was prohibited from having contact with the children.
  • Under G.S. 7B-1111(a)(7), a trial court looks to the six consecutive months immediately preceding the filing of the TPR petition and must make facts that the parent had a “purposeful, deliberative, and manifest willful determination to forego all parental duties and relinquish all parental claims to [the child].” Sl.Op. at 4-5.
  • “Incarceration, standing alone, is neither a sword nor a shield in a termination of parental rights decision.” Sl.Op. at 5. When parents are incarcerated, the court must recognize the limitations on that parent for showing love, affection, and parental concern. The trial court found that with one exception the father did nothing to maintain contact with the children’s mother to learn how the children were doing. There was nothing in the custody order that prohibited father from contacting the mother or other persons for him to indirectly communicate his love, affection, and parental concern for his children. Father’s failure to do “anything whatsoever to express love, affection, and parental concern for the children during the relevant six-month period” supports the TPR. Although his options were limited, it was not impossible for him to show such concern. Precluding a TPR against a parent who has been accused of sexually abusing one of his children solely because the other parent and State took action to protect the family would cause harm to the family members and is inconsistent with the intent of the General Assembly and appellate court precedent.
Termination of Parental Rights
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