In re C.A.H.

Citation850 S.E.2d 921,375 N.C. 750
Decision Date11 December 2020
Docket NumberNo. 188A20,188A20
Parties In the MATTER OF: C.A.H.
CourtUnited States State Supreme Court of North Carolina

No brief for petitioner-appellee mother.

Sydney Batch, Raleigh, for respondent-appellant father.

MORGAN, Justice.

Respondent-father, the biological father of C.A.H. (Charlie)1 , appeals from the trial court's orders terminating respondent-father's parental rights on the grounds of willful failure to pay for the cost of care of the child and willful abandonment. We affirm the trial court's decision to terminate respondent-father's parental rights.

Factual Background and Procedural History

Charlie was born in September 2014. Petitioner-mother and respondent-father were in a relationship at the time of her birth, but the parents never married. After Charlie was born, petitioner and respondent briefly resided together at the maternal grandfather's home until their separation sometime around December 2014. During the time that Charlie's parents lived together, respondent assisted petitioner with the care of Charlie and with the purchase of necessities for their child.

On 18 March 2016, petitioner obtained a Domestic Violence Protective Order (DVPO) prohibiting respondent from having contact with petitioner and Charlie for a one-year period. While the DVPO was in effect, the paternal grandmother, while babysitting Charlie, took the juvenile to respondent's house in violation of the order. Petitioner was escorted to respondent's home by law enforcement in order to retrieve Charlie from respondent. This was the last time that respondent saw his daughter.

On 10 September 2016, petitioner married her husband, Mr. I. Mr. I was in the military and was stationed in California at the time of the marriage. Petitioner could not live on the military base with her husband, Mr. I, and her daughter, Charlie, without having full custody of the child. Petitioner filed a child custody action and obtained sole custody of Charlie in an order entered by the trial court on 21 December 2016. Respondent was incarcerated at the time of the hearing and was scheduled to be released in May 2017. The trial court ordered respondent to pay $140.00 per month in child support to begin in June 2017 after respondent's release from imprisonment. Petitioner subsequently moved to California with Charlie after entry of the custody order.

Respondent was released from incarceration in February 2017. Shortly after his release, he contacted petitioner to request a visit with Charlie. When petitioner gave respondent a California address for the location of the authorized visit, respondent became angry. Respondent did not arrange a trip to California for the scheduled visit and did not tell petitioner that he did not plan to attend it. Petitioner and Charlie waited for two hours for respondent at the restaurant which was the chosen site for the respondent's visit with his daughter in California. When petitioner subsequently communicated with respondent via text message concerning respondent's failure to appear for his planned visit with Charlie, respondent answered that it was not "up to him to come and see [Charlie]. It was up to [petitioner] to bring her to him." Respondent testified at the termination of parental rights hearing that he did not attend the visit in California "because it would cost $1,000.00 to get a ticket to go half way across the world." Respondent's last contact with petitioner regarding Charlie was in February 2017.

Petitioner and Mr. I moved back to North Carolina with Charlie in April 2018. Petitioner did not inform respondent that the three of them had moved back to North Carolina. Respondent did not learn that Charlie had returned to reside in North Carolina until respondent was served with the petition to terminate his parental rights.

On 25 April 2019, petitioner filed a petition to terminate respondent's parental rights, alleging the grounds of willful failure to pay for the care, support, and education of the minor child; willful abandonment; and the earlier involuntary termination of respondent's parental rights with respect to another child. See N.C.G.S. § 7B-1111(a)(4), (7), (9) (2019). A hearing on the petition was held on 25 July, 29 August, 27 September, and 6 November of the year 2019. In an order entered 2 January 2020, the trial court found that grounds existed to terminate respondent's parental rights based on respondent's willful failure to pay for Charlie's care and respondent's willful abandonment of Charlie. In a separate disposition order entered on the same day of 2 January 2020, the trial court found that termination of respondent's parental rights to Charlie was in the child's best interests. Accordingly, the trial court terminated respondent's parental rights. Respondent appeals to this Court.


On appeal, respondent challenges the trial court's conclusions that grounds existed to terminate his parental rights. Respondent first argues that the trial court erred in concluding that grounds existed to terminate his parental rights based on willful abandonment. We disagree.

"We review a trial court's adjudication under N.C.G.S. § 7B-1111 ‘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, 831 S.E.2d 49, 52 (2019) (quoting In re Montgomery , 311 N.C. 101, 111, 316 S.E.2d 246, 253 (1984) ); see also N.C.G.S. § 7B-1109(f) (2019). Unchallenged findings are deemed to be supported by the evidence and are "binding on appeal." In re Z.L.W. , 372 N.C. 432, 437, 831 S.E.2d 62, 65 (2019). Additionally, "[a] trial court's finding of fact that is supported by clear, cogent, and convincing evidence is deemed conclusive even if the record contains evidence that would support a contrary finding." In re B.O.A. , 372 N.C. 372, 379, 831 S.E.2d 305, 310 (2019) (citing In re Moore , 306 N.C. 394, 403, 293 S.E.2d 127, 132 (1982) ). "The trial court's conclusions of law are reviewable de novo on appeal." In re C.B.C. , 373 N.C. 16, 19, 832 S.E.2d 692, 695 (2019).

The trial court may terminate parental rights when "[t]he parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition[.]" N.C.G.S. § 7B-1111(a)(7) (2019). "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 B.C.B. , 374 N.C. 32, 35, 839 S.E.2d 748, 752 (2020) (quoting In re Young , 346 N.C. 244, 251, 485 S.E.2d 612, 617 (1997) ). "[I]f a parent withholds his presence, his love, his care, the opportunity to display filial affection, and wil[l]fully neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child." Pratt v. Bishop , 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962). "The willfulness of a parent's actions is a question of fact for the trial court." In re K.N.K. , 374 N.C. 50, 53, 839 S.E.2d 735, 738 (2020). "[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, 833 S.E.2d 768, 773 (2019) (quoting In re D.E.M. , 257 N.C. App. 618, 619, 810 S.E.2d 375, 378 (2018) ).

In the present case, the determinative six-month period for the alleged ground of willful abandonment is 25 October 2018 to 25 April 2019. In support of its conclusion that grounds existed to terminate respondent's parental rights based on willful abandonment, the trial court made the following pertinent findings of fact:

9. The minor child [Charlie] was born of a romantic relationship between Petitioner and Respondent. The two were never married. After the minor child was born, the parties lived together for a brief period of time. During that time, Respondent did assist Petitioner with her care and with the purchase of necessaries.
10. On March 28, 2016 Petitioner obtained a [DVPO] against Respondent, which prevented them from having contact for 12 months. While this [DVPO] was valid, Respondent's mother, while babysitting the minor child, took [Charlie] to Respondent's house in violation of the order. Petitioner required the assistance of law enforcement to enforce the order and obtain the minor child from Respondent's residence in February 2016. This was the last time Respondent was in the presence of the minor child.
11. Petitioner filed for and obtained sole custody of the minor child in Alexander County File Number 16 CVD 123. Respondent was incarcerated at the time of the entry of the custodial order.
12. Pursuant to this Order, he was required to begin paying child support in the amount of $140.00 each month beginning June 1, 2017. He was entitled to "some regular visitation with the minor child upon his release from custody." His release date was in May 2017. There is a provision in the custody order that provides that either party can notice the matter back on if they cannot agree on a visitation schedule. Respondent has never noticed the custody matter back on for hearing or for a modification.
13. Respondent was in arrears on his child support obligation as of July 31, 2019 in the amount of $3,297.37. His payment history consists of three payments: March 15, 2019 for $114.21; May 3, 2019 for $114.21; and June 7, 2019 for $114.21. As a result of his failure to pay child support, an order to show cause is pending in that action.
14. From June 2017 until April 2019 when this petition was filed, Respondent should have made 23 monthly payments toward his child support obligation. In the 12 months next preceding the filing of this TPR action, the Respondent only made one payment toward his child support obligation. Since its filing, he has made two additional payments. None of these

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