In re L.D.W., _ N.C. App. _ (March 18, 2026)

New Search

Print Results

Held:

Affirmed

Facts: This is a private TPR action initiated by Mother against Father who has a history of substance use and domestic violence. In 2021, Mother obtained a domestic violence protective order (DVPO) due to ongoing harassment and threats from Father. The DVPO prohibited Father from contacting Mother other than through attorneys. Also in 2021, the trial court entered a temporary custody order (TCO) that ceased Father’s visitation and limited contact with the child to a phone call at a set time three days a week. Father only called the child as permitted 4 times. But, Father called Mother outside of the times established in the TCO when the child was not available to harass Mother and served two short sentences in 2022 for violating the DVPO. Father did not contact the child after September 2021. Mother was awarded permanent custody of the child in January 2023 at a hearing where Father was not present. The permanent custody order ordered Father to have no contact with the child. In March of 2023, Mother filed this private TPR action. In September 2023, Father moved and the trial court granted a Rule 60 motion to set aside the permanent custody order due to lack of notice to Father. Father’s parental rights were terminated on the grounds of willful abandonment and neglect. Father appeals arguing the findings do not support the conclusions and the court erred in limiting his cross-examination of Mother.
Appellate courts review the adjudication of grounds to TPR to determine whether the findings are supported by clear and convincing evidence and whether the findings support the conclusions of law. Conclusions of law are reviewed de novo.
G.S. 7B-1111(a)(7) allows the trial court to TPR where the parent “willfully abandons the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion.” “If a parent withholds that parent’s presence, love, care, the opportunity to display filial affection, and willfully neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child.” Sl. Op. at 5 (citation omitted). “Despite incarceration, a parent failing to have any contact can be found to have willfully abandoned the child.” Sl. Op. at 10 (citation omitted). A trial court may consider evidence outside of the determinative six-month period to “evaluate the parent’s credibility and intentions.” Sl. Op. at 5 (citation omitted).
The one challenged finding is supported by the evidence and not speculative. Evidence showed the notice of the permanent custody hearing and the permanent custody order were sent to the same address such that father did not have notice of the permanent custody order that prevented contact with the child until after the determinative six-month period for abandonment. Without receiving the notice and order, Father was under the belief that he could continue to call the child under the terms of the temporary custody order and failed to do so.
The challenged and unchallenged findings support the conclusion Father willfully abandoned the child during the six months preceding the filing of the TPR petition. The determinative time period is September 2, 2022 through March 2, 2023. Father has not had contact with the child since 2021. Throughout the determinative six-month period, Father remained able to communicate with the child at specified times and days pursuant to the TCO but failed to do so. Father could have sought a review of the TCO once he obtained drug or psychological evaluations, but he did not obtain those evaluations. Although Father was incarcerated for part of the six-month period, his incarceration did not prevent him from having any contact with the child. The permanent custody order father argues prevented him from contacting the child does not account for father’s failure to contact the child before that order was in effect. Father’s violations of the DVPO were not related to any attempts to contact the child but instead resulted from his contacting Mother (the plaintiff) outside of the designated time periods for him to call the child. Father has not sent cards, letters, or gifts to the child since 2021; has not made any inquiry with the child’s educators or healthcare providers; and has not provided financial support to the child since 2021. Findings show Mother has not changed her phone number and has remained a resident of and has been employed in the same county for the duration of the child’s life. If the court accepted Father’s argument that the permanent custody order prevented contact with the child, Father presented no evidence of any acts he took to contact the child during the six-month period.
The trial court did not err in limiting Father’s cross-examination of Mother during the adjudicatory phase. Appellate courts are limited to reviewing the record on appeal. There is no evidence in the record of what Father intended to ask Mother apart from the few questions asked relating to the child’s relationship with Father’s family prior to the objection that the information sought went to the child’s best interests. Father did not suggest that he attempted to elicit an alternative reason for his lack of contact with the child that was unrelated to willful abandonment. The limitation on his cross-examination was also not prejudicial as other evidence in the record shows the hostile relationship between Mother and Father, including text messages, judicially noticed court files, and witness testimony.