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In re D.T.H., 378 N.C. 576 (2021)

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Held:

Reversed and Remanded

Facts: In 2018, maternal grandparents filed the TPR petition. Maternal grandparents obtained permanent sole custody of the child through a Chapter 50 civil custody order entered in 2011. In 2013 the grandparents and child left the United States and lived in different countries until 2018 due to grandmother’s employment with the Department of Defense. After a hearing, the court terminated father’s parental rights. Father appeals.
G.S. 7B-1111(a)(1) authorizes a TPR on the ground of neglect which involves a parent not providing proper care, supervision, or discipline or a juvenile has been abandoned. Current neglect may be shown “without use of the two-part Ballard test [prior neglect and likelihood of future neglect] if a parent is presently neglecting their child by abandonment.” 378 N.C. at 588. Here, the court did not need to make a finding about the likelihood of future neglect. Unlike G.S. 7B-1111(a)(7), there is not a determinative 6-month time period immediately preceding the filing of the TPR petition for a determination of neglect by abandonment.
Neglect by abandonment involves a conduct by the parent that “demonstrates a ‘wilful neglect and refusal to perform the natural and legal obligations of parental care and support .… which manifests a willful determination to forego all parental duties and relinquish all parental claims to the child’ as of the time of the termination hearing.” 378 N.C. at 588.
The findings that are unchallenged or are properly supported do not support the conclusion that father’s rights were subject to termination.
- A recitation of testimony is not a proper finding of fact. The appellate court disregards challenged findings that are recitations of testimony.
- Evidence taken at the dispositional hearing cannot be considered for the adjudicatory phase of the TPR proceeding. The Rules of Evidence apply at adjudication and at disposition, the court may rely on evidence that is relevant, reliable, and necessary to determine the child’s best interests.
- The record contains conflicting evidence about father’s contact with the child during the years prior to the TPR, including whether the grandparents placed obstacles to father’s attempts to contact his child. The trial court, not the appellate court, must resolve disputed factual issues. The appellate court disregards a finding that does not resolve a material conflict. Reversed and remanded.
G.S. 7B-1111(a)(7) authorizes a TPR for willful abandonment during the 6 months immediately preceding the filing of the TPR petition. There were no findings regarding father’s conduct during that 6-month period. Additionally, the factual dispute in the record must be resolved by the trial court. Reversed and remanded.