In re B.R.L., 460A20

Docket Nº460A20
Citation2021 NCSC 119
Case DateOctober 29, 2021
CourtUnited States State Supreme Court of North Carolina

2021-NCSC-119

IN THE MATTER OF: B.R.L.

No. 460A20

Supreme Court of North Carolina

October 29, 2021


Appeal pursuant to N.C. G.S. § 7B-1001(a1)(1) from orders entered on 14 August 2020 by Judge Marion M. Boone in District Court, Surry County. This matter was calendared in the Supreme Court on 21 June 2021 but determined on the record and briefs without oral argument pursuant to Rule 30(f) of the North Carolina Rules of Appellate Procedure.

Edward Eldred for respondent-appellant mother.

J. Clark Fischer for petitioner-appellees.

No brief filed on behalf of the Guardian ad Litem.

EARLS, Justice.

¶ 1 Respondent, the mother of minor child B.R.L. (Billy)[1], appeals from a trial court order terminating her parental rights on the grounds of neglect and willful abandonment. Because we hold the trial court erred in concluding that grounds existed to terminate respondent's parental rights based on willful abandonment, and because we hold that the trial court failed to make any findings regarding the likelihood of future neglect, we reverse the trial court's order and remand the case to

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allow further factfinding on the ground of neglect.

I. Factual Background

¶ 2 This is a private termination matter involving respondent and Billy's paternal grandparents, Mr. and Mrs. H. (petitioners). On 4 May 2017, the Surry County Department of Social Services (DSS) filed a petition alleging Billy was a neglected juvenile. The petition alleged that on 5 January 2017, DSS received a report that Billy was living in an injurious environment due to domestic violence, substance abuse, and improper supervision. Both Billy and his older sister had tested positive for controlled substances at birth.

¶ 3 The petition also alleged that respondent and Billy's father engaged in criminal activity and drug use while the children were present. On 18 March 2017, the parents were arrested for shoplifting, and the children were placed into a temporary safety placement by the parents. On 23 March 2017, while responding to a call of possible drug activity at a Dollar General store, law enforcement officers found marijuana and methamphetamines, along with other drug paraphernalia, in a location accessible to the children in their parents' vehicle.

¶ 4 Following a 30 March 2017 Child and Family Team Meeting, the parents entered into a Family Services Agreement to address substance abuse, domestic violence, and parenting skills. DSS alleged that, at the time of the filing of the juvenile petition in May 2017, the parents had not begun working towards achieving

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the goals necessary to alleviate the risk of harm to Billy.

¶ 5 On 12 June 2017, the parents were arrested in South Carolina on drug charges. Respondent was incarcerated until 14 September 2017.

¶ 6 A hearing on the juvenile petition was held on 12 October 2017. On 31 October 2017, the trial court entered an order adjudicating Billy as a neglected juvenile. In a separate dispositional order entered that same day, the court awarded physical and legal custody of Billy to petitioners. The court found that respondent had acted inconsistently with her constitutionally protected status as a parent and was not fit to have custody of Billy. Respondent was granted two hours of supervised visitation once per month to be supervised by petitioners, which could be expanded at the discretion of petitioners. The court changed the permanent plan to legal custody with a relative and determined the permanent plan had been achieved, relieved DSS of further involvement in the matter, and waived further hearings.

¶ 7 On 25 April 2018, respondent was arrested for a probation violation in Surry County, North Carolina. Respondent remained incarcerated from 25 April through 4 August 2018. On 21 August 2018, respondent requested a visit alone with Billy. Petitioners agreed to meet but denied respondent's request for an unsupervised visit. Respondent visited with Billy on 22 August 2018.

¶ 8 Respondent visited with Billy again on 18 September 2018. However, she arrived one hour late to her two-hour visit. On 29 September 2018, respondent was

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arrested for a probation violation. Respondent admitted the violation, and her previously suspended sentence was activated. Respondent remained incarcerated until 26 March 2019.

¶ 9 On 11 June 2019, respondent filed a motion for review in the case requesting more visitation with Billy. A hearing was scheduled on the motion for 18 July 2019. On 11 July 2019, petitioners filed a motion to continue, and the matter was continued to 17 September 2019 but ultimately not held before the termination hearing.

¶ 10 Also on 11 July 2019, petitioners filed a petition to terminate respondent's parental rights alleging the grounds of neglect, willful failure to make reasonable progress to correct the conditions that led to the child's removal from the home, and willful abandonment.[2] N.C. G.S. § 7B-1111(a)(1)-(2), and (7) (2019). Following hearings on 9 December 2019 and 5 June 2020, the trial court entered an order on 14 August 2020 concluding that grounds existed to terminate respondent's parental rights based on neglect and willful abandonment. In a separate dispositional order entered the same day, the court concluded that termination of respondent's parental rights was in Billy's best interests. Accordingly, the trial court terminated respondent's parental rights. Respondent appealed.

II. Willful Abandonment

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¶ 11 We review a trial court's adjudication that grounds exist to terminate parental rights "to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law." In re E.H.P., 372 N.C. 388, 392 (2019) (quoting In re Montgomery, 311 N.C. 101, 111 (1984)). "The trial court's conclusions of law are reviewable de novo on appeal." In re C.B.C., 373 N.C. 16, 19 (2019). "Findings of fact not challenged by respondent are deemed supported by competent evidence and are binding on appeal." In re T.N.H., 372 N.C. 403, 407 (2019) (citing Koufman v. Koufman, 330 N.C. 93, 97 (1991)).

¶ 12 Our statutes are clear that before terminating parental rights on the grounds of willful abandonment, a trial court must find that the petitioner has presented clear, cogent, and convincing evidence the parent "has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion . . . ." N.C. G.S. § 7B-1111(a)(7). While the question of willful intent is a factual one for the trial court to decide based on the evidence presented, In re B.C.B., 374 N.C. 32, 35 (2020), and while the trial court's factual determination is owed deference, it remains our responsibility as the reviewing court to examine whether the evidence in the case supports the trial court's findings and whether, as a legal matter, the trial court's factual findings support its conclusions of law, In re Montgomery, 311 N.C. 101, 111 (1984).

¶ 13 Here, the evidence does not support the trial court's finding that respondent

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willfully abandoned Billy during the relevant six-month period. "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." In re Young, 346 N.C. 244, 251 (1997) (quoting In re Adoption of Searle, 82 N.C.App. 273, 275 (1986)). "To find that a parent has willfully abandoned his or her child, the trial court must 'find evidence that the parent deliberately eschewed his or her parental responsibilities in their entirety.'" In re A.L.L., 376 N.C. 99, 110 (2020) (quoting In re E.B., 375 N.C. 310, 318 (2020)).[3] "[A]lthough the trial court may consider a parent's conduct outside the six-month window in evaluating a parent's credibility and intentions, the 'determinative' period for adjudicating willful abandonment is the six consecutive months preceding the filing of the petition." In re N.D.A., 373 N.C. 71, 77 (2019) (quoting In re D.E.M., 257 N.C.App. 618, 619 (2018)).

¶ 14 The petition to terminate respondent's parental rights in Billy was filed on 11 July 2019. Thus, the determinative six-month period is 11 January 2019 to 11 July 2019. In arguing that the trial court erred by concluding that her parental rights in Billy were subject to termination based on willful abandonment, respondent contends

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that the evidence and findings of fact demonstrate she exercised her legal rights during the six-month determinative period in several ways, including by taking multiple proactive steps to maintain her relationship with Billy. Therefore, she maintains that her actions were "simply inconsistent with the determination that she had a 'purposeful, deliberative and manifest willful determination' to relinquish her parental claims to Billy[.]"

¶ 15 Respondent further challenges as not supported by the evidence finding of fact 77, which states that "[t]he dates and times set forth herein [in the termination order], regarding the mother contacting Petitioners to set up a visit or requesting a picture of the child, are the only dates and times since June 9, 2017 that the mother has contacted Petitioners to set up visits or contacted Petitioners." Respondent asserts Mrs. H. herself testified that respondent asked for a visit on 8 May 2019, a date which is not reflected in the trial court's findings. We agree.

¶ 16 Mrs. H. testified at the hearing that on 8 May 2019, respondent contacted her and asked if Billy could spend the night at respondent's mother's house. Mrs. H. testified that, in response, she told respondent that all visits must be supervised by petitioners. In finding of fact 66, the trial court found only that on 8 May 2019, "Petitioner informed [respondent] that any visits with the child will be supervised by Petitioners pursuant to the amended disposition order and the mother will have to...

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