In re B.R.L., 2021-NCSC-119

Held: 
Reversed and remanded in part
Reversed in Part
There is a dissent
Berger, J. joined by Newby, J. and Barringer, J.
  • Facts: In 2017, an underlying neglect action that was based on an injurious environment created by domestic violence, substance use, criminal activity, and improper supervision was commenced. A permanent plan of legal custody to a relative was achieved and further hearings were waived. Respondent mother had a couple visits with her child when she was not incarcerated and filed for a motion to review/increase visitation, which was not heard prior to the TPR hearing. The custodians filed a TPR petition. The TPR was granted on the grounds of neglect and willful abandonment. Mother appeals.
  • G.S. 7B-1111(a)(7) authorizes a TPR when a parent has willfully abandoned the juvenile for at least 6 consecutive months immediately preceding the filing of the TPR. Abandonment involves a willful determination of a parent to forego all parental duties and relinquish all parental claims. Willfulness is a question of fact. The determinative period is the 6 months immediately preceding the filing of the TPR petition.
    • The evidence does not support the findings, and the findings do not support the conclusion. The determinative six month period is January 11 – July 11. The unchallenged findings show mother was incarcerated for the first half of this time period, but after her release she requested visits 3 times during the determinative time period and visited with her child once. She also filed a pro se motion to review visitation one month before the TPR was filed. Mother’s actions do not show she intended to forego all parental duties and relinquish all parental claims.
    • A motion to increase visitation is evidence the court must consider when determining willful abandonment but the motion, standing alone, does not necessarily defeat this ground.
  • Dissent: The findings and conclusions support the ground of willful abandonment. The majority went beyond a review of the findings and conclusions and created new facts, which is the duty of the trial court. Mother took no action regarding her child during the time she was incarcerated. Sporadic visits should not foreclose an abandonment finding. No holdings have  established filing a motion will negate an abandonment finding.
Category:
Termination of Parental Rights
Stage:
Adjudication
Topic:
Abandonment
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