In re C.B.C., ___ N.C. ___ (Sept. 27, 2019)

  • Facts: This is a private TPR initiated by maternal grandparents against respondent father. After mother’s death in 2012, a custody dispute between maternal grandparents and father was initiated, with maternal grandparents ultimately obtaining permanent custody in 2015. Respondent father was granted no visitation but was specifically authorized by the court order to petition for visitation after he was released from prison upon demonstrating his addressing his ongoing substance abuse and mental health issues. Respondent father was also permitted the right to write to his daughter. A first TPR was brought and denied. This is a second TPR, where the court concluded there were grounds to TPR based on neglect and willful abandonment and that the TPR was in the child’s best interests. Respondent father appeals.
  • Standard: A TPR involves a two-stage process: adjudication and disposition. At adjudication, the petitioner has the burden of proving a ground by clear, cogent, and convincing evidence. The court reviews the adjudication by determining whether the findings are supported by clear, cogent, and convincing evidence and whether the findings support the conclusions of law. Conclusions of law are reviewed de novo. If there is an adjudication, the court proceeds to the disposition stage, which considers the best interests of the child.
  • Abandonment implies conduct on the part of the parent which manifests a willful determination to forego all parental duties and relinquish all parental claims.” Sl. Op. at 5 (citations omitted). Willful is a question of fact. “[I]f a parent withholds [that parent’s] presence, [] love, [] care, the opportunity to display filial affection and willfully [sic] neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child.” Sl. Op. at 5-6 (citations omitted).
  • Under G.S. 7B-1111(a)(7) the relevant time period to determine abandonment is the 6-month period preceding the filing of the TPR petition. Respondent was incarcerated half that time, yet “incarceration, standing alone, is neither a sword nor a shield” in a TPR. Respondent, although having limited options to show affection, “will not be excused from showing interest in [the] child’s welfare by whatever means available.” Sl. Op. at 6 (emphasis added by supreme court, citing quoting In re D.E.M., 810 S.E.2d 375, 378 (N.C. Ct. App. 2018).
  • The findings included respondent had regular income during part of the relevant period but did not provide any support for the child, made no effort to communicate with the child except for one birthday card that was sent after he was served with the TPR, made no effort to contact the custodians about the child’s well-being despite having their contact information, and made no efforts to modify the existing custody order. These findings support the conclusion of willful abandonment.
  • The father’s participation in the first TPR hearing “does not preclude the trial court from later finding that he has willfully withheld his love, care, and affection during the determinative six-month period.” Sl. Op at 8-9. Although a court may consider a parent’s conduct outside of the determinative 6-month period, that goes to evaluating a parent’s credibility and intentions and does not preclude a finding of willful abandonment during the determinative 6-month period.
Termination of Parental Rights
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