In re M.S.A., 377 N.C. 343 (2021)

  • Facts: This is a private TPR initiated by the maternal great-great aunt who the child had been living with continuously since 2010. The TPR petition was filed in 2018 and alleged father was incarcerated and had not visited with the child since 2011 or provided financial support or sent any card or gifts for at least 5 years. TPR was granted and father appeals.
  • Issue Raised by Father: “Whether an incarcerated parent who has not had contact with his child for eight years and does not know how to contact his child may lose his parental rights on the ground of abandonment” 377 N.C. at 345. This raises the question of willfulness.
  • G.S. 7B-1111(a)(7) authorized a TPR on the ground of willful abandonment for the six months immediately preceding the filing of the petition. “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,” which is evidence by a parent withholding their presence, love, care, and opportunity to display filial affection and neglecting to provide support or maintenance for the child. 377 N.C. at 346. The court may look outside the 6-month determinative window to determine a parent’s credibility and intentions.
  • The findings show that since father was incarcerated in 2012, he has never written letters, sent gifts or cards, contacted petitioner to learn about his child’s well-being, or provided financial support for the child. Father claims that his not asking family members with whom he contact about the child is not the equivalent of willful abandonment. Father is seeking to use his incarceration as a shield, and “incarceration, standing alone, is neither a sword nor a shield in a termination of parental rights decision.” 377 N.C. at 348. It is undisputed that father had the ability to seek contact information from his relatives but did not do so for years. His actions were willful.
Termination of Parental Rights
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