In re D.E.M., ___ N.C. App. ___, 810 S.E.2d 375 (2018)

Held: 
Vacated and Remanded
  • G.S. 7B-1111(a)(7) authorizes the termination of parental rights when a parent has willfully abandoned the juvenile for at least six months immediately preceding the filing of the TPR petition or motion. Abandonment implies conduct on the part of the parent that manifests a willful determination to forego all parental duties and relinquish all parental claims and requires purpose and deliberation.
  • The determinative period for a  TPR based on G.S. 7B-1111(a)(7) is the six consecutive months immediately before the filing of the TPR petition or motion, although an earlier time period may be considered by the court in evaluating a parent’s credibility and intention. Findings of fact that do not address the relevant time period are inadequate to support the conclusion of law that the ground exists. Here, the findings do not include any dates or refer to whether the action by the parent occurred prior to or during the relevant time period.
  • Willfulness is not proved by incarceration alone, and an incarcerated parent is not excused from showing an interest in his or her child’s welfare by whatever limited means are available. The court’s findings must indicate it considered the limitations placed on the parent when determining whether the parent’s actions are willful (e.g., what efforts could have been made; was the parent able but failed to provide contact, love, or affection to the child while incarcerated). Findings that the father was incarcerated during the relevant six-month period and had no contact with and provided no support to the juvenile were insufficient.
  • Rule 52 of the Rules of Civil Procedure apply to TPR orders. Upon remand, the trial court “must avoid the use of mixed findings of fact [with conclusions of law] and instead, separate the findings of fact from the conclusion of law.”
    • Author’s note: This opinion does not address prior appellate opinions that have held mischaracterized findings of fact or conclusions of law are not a fatal error and are treated on appellate review as what they are, rather than what they are labelled.
Category:
Termination of Parental Rights
Stage:
Adjudication
Topic:
Abandonment
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