In re A.A., 441A20

Docket Nº441A20
Citation2022 NCSC 66
Case DateJune 17, 2022
CourtUnited States State Supreme Court of North Carolina

2022-NCSC-66

IN THE MATTER OF: A.A.

No. 441A20

Supreme Court of North Carolina

June 17, 2022


Heard in the Supreme Court on 5 October 2021.

Appeal pursuant to N.C. G.S. § 7B-1001(a1)(1) (2019) from an order entered on 12 August 2020 by Judge Marion Boone in District Court, Surry County.

James N. Freeman Jr. for petitioner-appellee.

No brief for appellee Guardian ad Litem.

Peter Wood for respondent-appellant mother.

MORGAN, Justice.

¶ 1 In this private termination of parental rights case, we consider issues of the trial court's subject matter jurisdiction and its substantive determinations in the proceeding. First, we address the question of whether petitioner, as the stepmother of the juvenile who is the focus of this matter, had standing to bring a private termination of parental rights action against respondent-mother, the child's biological mother. If we conclude that petitioner had standing to initiate the termination action, then we must additionally consider respondent-mother's arguments that the trial court erred (1) in finding that the ground of abandonment existed for termination of parental rights, and (2) in concluding that termination of

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respondent-mother's parental rights was in the child's best interests.

¶ 2 Upon careful review, we hold that petitioner satisfied the relevant statutory requirements to file a private petition for termination of parental rights. We further conclude that clear, cogent, and convincing evidence of abandonment, as defined in both statutory law and case law, was presented at the adjudication hearing to establish that this ground existed for the termination of respondent-mother's parental rights. Lastly, the trial court did not abuse its discretion in concluding that it was in the child's best interests to terminate the parental rights of respondent-mother. Accordingly, we affirm the trial court's order terminating respondent-mother's parental rights.

I. Factual Background and Procedural History

¶ 3 Respondent-mother gave birth to a daughter "Amy" on 5 August 2010.[1] Amy's father was granted primary custody of Amy in 2012. Petitioner and Amy's father became involved in a romantic relationship in October 2013, and petitioner, Amy's father, and Amy began residing together later in the year. On 30 April 2015, petitioner and Amy's father married each other; the couple had two children together: a son born in April 2015 and a daughter born in March 2017. Petitioner and Amy's father separated in October 2017 and became divorced on 14 January 2019.

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¶ 4 On 31 May 2018, petitioner filed an action against respondent-mother and Amy's father in District Court, Surry County, seeking full custody of Amy. In the custody complaint, petitioner alleged that respondent-mother and Amy's father were incarcerated in the Surry County Jail at the time of the filing of the action and that Amy had continued to live with petitioner since petitioner's marriage to the father, even after petitioner and Amy's father separated. Petitioner further alleged the occurrence of two incidents of domestic violence by Amy's father toward petitioner in the presence of one or more of the children. Petitioner stated that after the father exercised visitation with Amy and one of Amy's half-siblings on 22 January 2018, petitioner and Amy's father had a verbal argument which resulted in a "physical outburst" by the father and his destruction of petitioner's kitchen table and chairs in the presence of their youngest child. Petitioner also described an altercation on 1 May 2018 between the father and their two biological children which transpired during a visit to a fast-food restaurant, leading petitioner to seek criminal charges against the father and to seek a domestic violence protective order. Amy's father was arrested later in the day after picking up Amy early from school and then, with Amy in his car, circling the domestic violence office in Surry County where petitioner was discussing the domestic violence incident at the fast-food restaurant which had occurred.

¶ 5 On 31 May 2018, petitioner was granted temporary legal and physical custody

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of Amy, and on 23 July 2018, petitioner was granted exclusive legal and physical custody of Amy upon the trial court's finding that respondent-mother and Amy's father had "acted contrary to their constitutionally protected status as biological parents." Respondent-mother was granted two hours of supervised visitation with Amy weekly. However, respondent-mother did not utilize the visitation with the juvenile which was available to her and had only one in-person visit with Amy over the course of the next eleven months. Although respondent-mother requested a visit with Amy on 6 August 2018-the day after Amy's birthday-respondent-mother was not punctual in her arrival for the visit at the location where petitioner and respondent-mother had agreed that the visit would occur, which was a local library. Respondent-mother also failed to attend a court-ordered custody mediation regarding Amy in late September 2018. Respondent-mother did have a visit with Amy on 23 September 2018. On 25 September 2018, respondent-mother requested another visit with the child, but when petitioner asked respondent-mother to send a text message to petitioner during the following week in order to arrange details of the proposed visit, respondent-mother did not do so. The next contact which petitioner had with respondent-mother occurred on 12 May 2019, which was Mother's Day. On this occasion, respondent-mother sent the following text message to petitioner: "This is [respondent-mother]. Happy Mother's Day. Thank you for always loving mine and treating mine as your own."

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¶ 6 On 13 May 2019, petitioner filed a private petition to terminate respondent- mother's parental rights to Amy, alleging willful abandonment of the minor child within the meaning of N.C. G.S. § 7B-1111(a)(7) as the grounds for termination. Petitioner alleged that respondent-mother did not exercise respondent-mother's visitation rights with Amy at any time after 23 September 2018, that respondent-mother also chose not to send Amy any gifts, cards, or other correspondence from this identified juncture, and that respondent-mother never attempted to communicate with Amy by telephone or any other means.

¶ 7 During the adjudication hearing which took place on 24 July 2020, [2] petitioner testified that she had heard nothing from respondent-mother for eight months after September 2018 until respondent-mother sent petitioner the aforementioned Mother's Day text message on 12 May 2019. On this occasion, however, respondent-mother did not ask to speak to Amy or inquire about Amy's wellbeing. Although respondent-mother had a mailing address for Amy and knew petitioner's telephone number, nonetheless Amy never received any cards, gifts, food, clothing, or other items from respondent-mother; respondent-mother never assisted with Amy's school, medical, or emotional needs; and in the handful of text messages that respondent-

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mother sent to petitioner-in August 2019, March 2020, April 2020, and May 2020- respondent-mother never requested a visit with Amy or asked to speak with the child after Amy's birthday on 5 August 2019. In her August 2019 birthday telephone call to Amy, respondent-mother told the juvenile that respondent-mother had gifts and a card for Amy and confirmed a mailing address with petitioner, but no such gifts or card were ever received.

¶ 8 Amy's father testified at the adjudication hearing that he did not believe that respondent-mother had any contact with Amy after September 2018 but acknowledged that his information was limited in light of the fact that he had been incarcerated for eighteen months out of the three years which preceded the adjudication hearing. The father also acknowledged that he had maintained control of the financial card onto which child support payments made by respondent-mother for the benefit of Amy were deposited and that he was using the funds himself which were deposited on the card, even though Amy had been in petitioner's sole custody for two years. Amy's father explained that while he was aware that the funds were intended for Amy's support, he believed that the State-not the father-had the responsibility to ensure that the child or her custodian was receiving the money which was paid for child support.

¶ 9 Respondent-mother testified that "at the end of 2018" she moved from Surry County, where Amy resided with petitioner, to Raleigh "to better [her] life."

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Respondent-mother related that she had been previously incarcerated on drug charges but represented that at the time of the adjudication hearing she had been "clean" for six months. Respondent-mother acknowledged that "[t]here isn't much of a relationship" between petitioner and her. When asked during her testimony why she had not tried to contact petitioner about Amy more than once after September 2018, respondent-mother replied, "Honestly, I just had just kind of given up at that point. And I didn't want to cause any more issue or drama or stress." Respondent-mother also testified that her wages had been garnished for six or seven years to provide child support for Amy, but respondent-mother admitted that she was aware that these funds were going to the father even though respondent-mother also knew that petitioner had obtained sole custody of Amy in 2018.

¶ 10 In a termination order filed on 12 August 2020, the trial court made findings of fact regarding, inter alia, the custody complaint filed by petitioner and the resulting award of custody, of which the trial court took judicial notice; respondent-mother's repeated failure to attend mediation sessions which were ordered as part of the custody proceedings; respondent-mother's failure to exercise visitation with Amy with the sole exception of a visit on 23 September 2018; respondent-mother's only...

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