In re C.K.C., 263 N.C. App. 158 (2018)

  • Facts: In 2014, grandmother (and petitioner in this TPR) initiated a G.S. Chapter 50 custody action and obtained an ex parte emergency custody order of the two children. In 2016, a consent order was entered in the Chapter 50 action that awarded (1) grandmother with joint legal custody of the two children and primary physical custody, (2) grandfather and his wife with joint legal custody and secondary physical custody with visitation, and (3) the termination of father’s child support order and no visitation with father. The consent order provided that grandmother will file an action to terminate respondent father’s parental rights, which no party will oppose. In October 2017, respondent father filed a motion to modify the Chapter 50 consent order alleging a substantial change in circumstances and seeking sole custody. In November 2017, grandmother filed a TPR petition alleging neglect and abandonment under G.S. 7B-1111(a)(1) & (7), which was granted in March 2018. Respondent father appeals the TPR, challenging both grounds.
  • The standard of review for a ground to TPR is whether there is clear, cogent, and convincing evidence to support the findings of fact and whether the findings of fact support the conclusions of law. The conclusion of law is reviewed de novo.
  • “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.” Sl. Op. at 4 (citation omitted). Willfulness is more than intention; it has purpose and deliberation. Willful abandonment is more than a parent’s failure to live up to his parental obligations; “findings must clearly show that the parent’s actions are wholly inconsistent with a desire to maintain custody.” Sl. Op. at 5. Willfulness is a question of fact.
  • Willful abandonment under G.S. 7B-1111(a)(7) involves the six consecutive months immediately preceding the filing of the TPR petition, although the court may consider the parent’s conduct outside of this determinative time period when evaluating a parent’s credibility and intentions. During the six month relevant time period, respondent father filed a motion to modify the Chapter 50 consent order seeking sole custody, which demonstrates that he did not intend to forego all parental duties and relinquish all parental rights to the children.
  • Neglect under G.S. 7B-1111(a)(1) includes a juvenile who has been abandoned (as defined by G.S. 7B-101(15)). The finding of neglect must be based on evidence that shows neglect at the time of the termination hearing. Respondent father’s attempt to regain custody of his children precludes the court’s determination that respondent-father neglected the children through abandonment.
  • “The consent order, as construed by the trial court, is void as against public policy, insofar as it constitutes an agreement that Respondent-father’s parental rights should be terminated or that Respondent-father relinquished his parental rights…” Sl. Op. at 7. There was not a properly executed consent or relinquishment for adoption, and a TPR requires the statutory process two-step process involving an adjudicatory and dispositional stage. See In re Jurga, 123 N.C. App. 91 (1996); Foy v. Foy, 57 N.C. App. 128 (1982).
Termination of Parental Rights
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