In re D.M.O., ___ N.C. App. ___, 794 S.E.2d 858 (2016)

Held: 
Vacated and Remanded
  • G.S. 7B-1111(a)(7) authorizes the termination of a parent’s rights (TPR) when the parent has willfully abandoned the child for at least six months immediately preceding the filing of the TPR petition. Willfulness is a question of fact that must be supported by competent evidence and requires purpose and deliberation and not merely an intention to do a thing. Abandonment requires conduct by the parent that manifests a willful determination to forego all parental duties and relinquish all parental claims to the child.
  • The findings of fact regarding respondent mother’s willfulness do not support the conclusion that she willfully abandoned her child during the relevant six month time period. The findings are that the mother failed to visit with the child, attend his sports games, or contact the father (petitioner in this private TPR) during the relevant time period. But the evidence showed respondent mother was incarcerated for all but 33 days of the 180 relevant days and that she struggled with drug addiction and substance abuse and participated in a drug treatment program during the same relevant time period. The court’s findings must address the limitations incarceration imposes on a parent to exercise her parental rights (in this case request and exercise visitation, attend sports games, or communicate with the father). There were no findings as to whether respondent mother made the effort or had the ability to exercise any of those rights given her incarceration, addiction issues, and participation in a drug treatment program. There were no findings that if she had the ability to make the effort that she failed to do so.
  • Testimony from petitioner-father and respondent-mother regarding her efforts to communicate with the father and contact the child conflict. On remand, the court must resolve the material conflicts in the evidence related to the respondent’s willfulness regarding her conduct in order to make a conclusion as to whether willful abandonment exists.
Category:
Termination of Parental Rights
Stage:
Adjudication
Topic:
Abandonment
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