In re L.M.M., 375 N.C. 346 (2020)

There is a dissent.
  • Facts: This is an appeal of a private TPR. In 2017, mother contacted petitioner to request petitioner take temporary custody of mother’s child due to her lack of housing and employment. Petitioner agreed if mother permanently signed over her parental rights, which mother ultimately agreed to. Mother signed a notarized document that purported to transfer permanent parental rights to petitioner. Mother contacted petitioner through Facebook to request a picture of her son and money. After mother’s second request for money, petitioner blocked mother on Facebook. In 2018, mother was incarcerated. In 2019, petitioner filed an adoption petition and this TPR. Mother’s rights were terminated, and mother appeals the grounds.
  • G.S. 7B-1111(a)(7) authorizes the termination of parental rights when the parent has willfully abandoned the child for at least 6 months immediately preceding the filing of the TPR petition. Abandonment involves a parent’s conduct that manifests a willful determination to forego all parental duties and claims and includes withholding his presence, love, care, opportunity to display filial affection, and support/maintenance. Although the determinative time period is those 6 months before the petition is filed, a trial court may consider the parent’s conduct outside of that 6-month period to evaluate the parent’s credibility and intentions.
  • The findings about mother not having taking any action to contact and/or provide financial support for her child, even when incarcerated during some or all of the determinative six month time period are supported by clear and convincing evidence – petitioner’s testimony. That testimony included that petitioner had the same phone number and mother was only blocked on Facebook, not by phone, and petitioner and mother had shared relatives. Although petitioner communicated with mother’s mother, she had not been advised of any attempt by mother to contact her about the child. Mother’s “complete failure to show any interest in Larry after November 2017 – particularly during the six months between 18 July 2018 and 18 January 2019 – supports the trial court’s conclusion that she acted willfully in abandoning the child.” Sl.Op. at 12.
  • Evidence of mother’s intentions before the 6 month time period, which includes mother’s initial requires to place her child with petitioner temporarily, represents mother’s intention before the determinative six month period. “The weight to be assigned to respondent’s conduct during this earlier period was a matter left to the trial court’s discretion as fact-finder.” Sl.Op. at 13.
  • Because one ground is affirmed, the appellate court does not need to review the two other grounds as adjudication of any single ground to TPR is sufficient to support the trial court’s order.
  • Dissent, Earls: Petitioner’s testimony of the lack of actual contact by mother while mother was incarcerated is not clear and convincing evidence that mother did not attempt to make contact. “The absence of evidence is not the same thing as clear, cogent, and convincing evidence.” Dissent at 6. There is a difference between mother’s alleged lack of efforts and petitioner’s experience and perceptions of her interactions with the mother. Addressing the ground of neglect, mother recognized she was unable to provide for her child and sought an appropriate alternative caregiver such that these protective actions do not support an inference that she neglected her son.
Termination of Parental Rights
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