Adoption of Searle, In re
| Decision Date | 05 August 1986 |
| Docket Number | No. 8626SC70,8626SC70 |
| Citation | 346 S.E.2d 511,82 N.C.App. 273 |
| Court | North Carolina Court of Appeals |
| Parties | In re ADOPTION OF Joshua Neal SEARLE. |
Casstevens, Hanner, Gunter and Gordon, P.A. by Robert P. Hanner, II, and W. David Thurman, Charlotte, for petitioner-appellee.
Ronald Williams, P.A., Charlotte, for respondent-appellant.
Respondent's first contention on this appeal is that the trial court erred in denying his motions for directed verdict and for judgment n.o.v. because the evidence, when considered in the light most favorable to petitioner, failed to establish a willful abandonment. We disagree.
Prior to 1 October 1985, two procedures were available to enable a petitioning party to adopt a minor child without the consent of the opposing biological parent. First, under G.S. 7A-289.32, a court could terminate the parental rights of a biological parent upon a finding of one of the grounds enumerated therein. Pursuant to G.S. 48-5, once a district court had entered an order terminating the parental rights of a biological parent, that parent was no longer a necessary party to an adoption proceeding.
Second, the court, upon proper motion, was authorized to hold a hearing "to determine whether an abandonment as defined in G.S. 48-2(1)a and (1)b ha[d] taken place." G.S. 48-5(d). However, effective 1 October 1985, these proceedings were merged into one termination of parental rights proceeding under G.S. 7A-289.32(8) to ascertain whether "[t]he parent has willfully abandoned the child for at least six consecutive months immediately preceding the filing of the petition."
In the case sub judice, the action was commenced on 15 November 1983, and the judgment was entered on 21 August 1985. Because both of these dates occurred prior to the effective date of the amendment, we must examine this case in light of the statute as it existed prior to the new amendment.
General Statute 48-2(1)a provided in pertinent part:
For the purpose of this Chapter, an "abandoned child" shall be any child who has been willfully abandoned at least six consecutive months immediately preceding institution of an action or proceeding to declare the child to be an abandoned child.
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. Pratt v. Bishop, 257 N.C. 486, 126 S.E.2d 597 (1962). The word "willful" encompasses more than an intention to do a thing; there must also be purpose and deliberation. In re Clark v. Jones, 67 N.C.App. 516, 313 S.E.2d 284, disc. rev. denied, 311 N.C. 756, 321 S.E.2d 128 (1984).
A motion for judgment notwithstanding the verdict like a motion for directed verdict, tests the sufficiency of the evidence to go to the jury, and the applicable standard is the same for both motions. The court must view the evidence in the light most favorable to the nonmovant, giving him the benefit of every inference that could reasonably be drawn from the evidence. West v. Slick, 313 N.C. 33, 326 S.E.2d 601 (1985). If there are conflicts in the evidence permitting different inferences, a directed verdict is improper because the credibility of the testimony is for the jury, not the trial judge. Population Planning Associates v. Mews, 65 N.C.App. 96, 308 S.E.2d 739 (1983).
Under this standard, petitioner's evidence was sufficient to show that respondent willfully abandoned his minor child. The relevant time period under G.S. 48-2(1)a is "at least six consecutive months immediately preceding institution" of an abandonment action. Since this action was commenced on 15 November 1983, respondent's behavior between 15 May 1983 and 15 November 1983 is determinative. Respondent had no contact with the minor child between 21 January 1981 and 2 August 1983, nor did he provide any maintenance or support. On 31 July 1983, petitioner telephoned respondent and stated that he wished to adopt respondent's minor son. After respondent consulted his attorney on 2 August 1983, Mrs. Brewster received $500.00 in support money from respondent. Respondent sent no support checks to Mrs. Brewster in September, October or November of 1983.
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