In re C.J.B., ___ N.C. App. ___ (September 5, 2023)
Held:
Reversed and Remanded
- Facts: Father appeals the order terminating his parental rights on the ground of willful abandonment. Mother and Father executed a 2011 consent order shortly after the child at issue was born in which they agreed to joint custody of the child, Mother was given primary custody, and Father was ordered to pay monthly child support. Father was incarcerated in Indiana from 2014 to 2017 following two felony convictions relating to sexual misconduct against a minor. Upon release in 2017, Father was subject to restrictive parole conditions which included an absolute bar to any form of contact or communication with any minor child, including his biological child, without prior approval from the Indiana Parole Board. Father petitioned the Parole Board for modification of his parole conditions in 2017 and 2019, which were denied. Mother filed the termination petition in June 2021. Father again petitioned the Parole Board for modification of his parole conditions in 2021 after the filing of the petition, which was denied. Father appeared at the adjudication hearing while incarcerated for a sex offense charge in North Carolina. Father challenges two findings of fact as unsupported by the evidence and argues the court’s conclusion of willful abandonment is unsupported by the findings.
- Standard of review: A trial court’s adjudication that a ground exists to terminate parental rights is reviewed “to determine whether the findings are supported by clear, cogent, and convincing evidence and the findings support the conclusions of law.” Sl. Op. at 6 (citation omitted). Conclusions of law that a ground exists to terminate parental rights are reviewed de novo.
- An ultimate finding is a finding supported by other evidentiary facts reached by natural reasoning. Sl. Op. at 9. Findings of ultimate fact are conclusive on appeal “if the evidentiary facts reasonably support the trial court’s ultimate finding [of fact.]” Sl. Op. at 7 (citation omitted).
- G.S. 7B-1111(a)(7) authorizes the termination of parental rights on the grounds of willful abandonment if the trial court finds that that the parent “has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion.” Sl. Op. at 8 (citing G.S. 7B-1111(a)(7)). The determinative period for adjudicating willful abandonment is the six months preceding the filing of the petition, though the trial court can look to a parent’s conduct outside of the determinative period “in evaluating a parent’s credibility and intentions.” Sl. Op. at 8.
- “Abandonment implies conduct on the part of the parent which manifests a willful determination to [forgo] all parental duties and relinquish all parental claims to the child.” Sl. Op. at 11 (citation omitted). The trial court’s “findings must clearly show that the parent’s actions are wholly inconsistent with a desire to maintain custody of the child.” Sl. Op. at 11. Willful intent is a factual determination of the trial court.
- The challenged finding that Father failed to make sufficiently reasonable efforts to request approval from the Parole Board to allow contact with his child post-release is an ultimate finding. This ultimate finding of Father’s intentions is supported by the evidentiary facts regarding the frequency of Father’s attempts to modify his parole conditions.
- The trial court’s finding of fact that Father did not send any cards, letters, gifts, or tokens of affection to the child during the determinative period fails to address Father’s restrictive parole conditions that barred contact without approval of the Parole Board. This finding is disregarded to the extent the finding implies Father “possessed the ability to contact [the child] without subjecting himself to a real and significant risk of criminal prosecution.” Sl. Op. at 10.
- The findings are insufficient to sustain a conclusion of willful abandonment. Though undisputed that there was no contact during the determinative period, Father remained current on his child support obligations during the determinative period and petitioned the Parole Board for modification of his parole conditions after the TPR petition was filed. Father completed tests required for consideration of any modification of his parole conditions, and promptly petitioned the Parole Board for modification of his parole conditions in 2017 and again in 2019. These findings show Father’s actions are “not consistent with a parent who has manifested a willful determination to forgo all parental duties and all parental claims to the child.” Sl. Op. at 12.
- Although Father’s conduct in Indiana is reprehensible, it is not willful abandonment. The court will not speculate on other grounds for termination not alleged in the petition and the holding does not prevent Mother from bringing a new TPR petition.
Category:
Termination of Parental RightsStage:
AdjudicationTopic:
Abandonment