In re D.M.O.

• Decision Date: 06 December 2016
• Docket Number: No. COA16-575,COA16-575
• Citation: 250 N.C.App. 570,794 S.E.2d 858
• Parties: In the MATTER OF: D.M.O.
• Court: North Carolina Court of Appeals

250 N.C.App. 570

794 S.E.2d 858

In the MATTER OF: D.M.O.

No. COA16-575

Court of Appeals of North Carolina.

Filed: December 6, 2016

H. Wood Vann, Durham, for petitioner-appellee father.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Joyce L. Terres, for respondent-mother.

No brief filed for guardian ad litem.

ELMORE, Judge.

Respondent-mother appeals from the trial court's order terminating her parental rights to D.M.O. ("David")¹ on the ground of abandonment. We vacate and remand.

I. Background

Respondent-mother and petitioner-father are the biological parents of David. The parties resided together with David as a family unit from the date of his birth in March 2007 until the parties separated in July 2010 due to escalating conflict between the parties that resulted in respondent-mother committing acts of domestic violence against petitioner-father. After the parties separated, petitioner-father took physical custody of David and filed a custody action in Durham County.

After a hearing, the trial court entered a permanent custody order on 25 January 2011, which granted petitioner-father legal and physical custody of David and respondent-mother unsupervised visitation on Tuesdays, Thursdays, and Saturdays. Respondent-mother and petitioner-father made agreements over the years to change the times of visitation, based on mutual convenience and changes in David's school and extracurricular activity schedules.

For several years, respondent-mother has struggled with drug addiction and substance abuse and has been incarcerated multiple times at multiple jails and prisons for issues related to drugs and other crimes. Relevant to this appeal, she was incarcerated at Wake County jail from 10 December 2014 to 7 January 2015. She was incarcerated at Durham County jail, participating in a drug treatment program, from 23 January to 2 March 2015. She returned to Wake County jail on 9 March and then was transferred in late July to a prison within the North Carolina Department of Adult Correction, where she remained until the termination hearing.

On 28 May 2015, petitioner-father filed a petition to terminate respondent-mother's parental rights to David alleging, inter alia , that she "willfully abandoned [David] for at least six (6) consecutive months immediately preceding the filing of the petition," pursuant to N.C. Gen. Stat. § 7B-1111(a)(7). From jail, respondent-mother handwrote a letter to the clerk of court stating that she did not want her parental rights terminated, that she had been incarcerated for most of the year, and that she wanted an attorney. Respondent-mother also stated that "she ha[d] contacted [petitioner-father] many, many times[, and she] had either gotten [n]o response or [petitioner-father responding] ‘No’ & ‘Busy’ on multiple occasions[.]" On 30 June 2015, respondent-mother filed a formal response denying the allegations that she willfully abandoned David. At some point in July 2015, respondent-mother was transferred from Wake County jail to Eastern Correctional Institution in Maury, North Carolina. On 26 August 2015, a guardian ad litem ("GAL") was appointed for David.

On 29 January 2016, the district court held a termination hearing. On 16 March 2016, the trial court entered an order concluding that grounds existed to terminate respondent-mother's parental rights based on willful abandonment pursuant to N.C. Gen. Stat. § 7B-1111(a)(7) and that termination was in David's best interests. Respondent-mother appeals.

II. Analysis

Respondent-mother argues the trial court erred by concluding she willfully abandoned David pursuant to N.C. Gen. Stat. § 7B-1111(a)(7) because there was insufficient evidence and findings of her "willfulness." In addition, respondent-mother contends the trial court erred by not requiring David's GAL to perform his statutory duties of "offer[ing] evidence and examin[ing] witnesses at adjudication," as well as "explor[ing] options with the court at the dispositional hearing." See N.C. Gen. Stat. § 7B-601(a) (2015).

A. Standard of Review

" ‘This Court reviews a trial court's conclusion that grounds exist to terminate parental rights to determine whether clear, cogent, and convincing evidence exists to support the court's findings of fact, and whether the findings of fact support the court's conclusions of law.’ " In re C.J.H. , ––– N.C. App. ––––, ––––, 772 S.E.2d 82, 88 (2015) (quoting In re Huff, 140 N.C.App. 288, 291, 536 S.E.2d 838, 840 (2000) ). "If the trial court's findings of fact are supported by ample, competent evidence, they are binding on appeal, even though there may be evidence to the contrary." Id. (citation omitted). We review de novo whether a trial court's findings support its conclusions. See In re S.N. , 194 N.C.App. 142, 146, 669 S.E.2d 55, 59 (2008) (citation omitted), aff'd per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009).

However, meaningful appellate review requires that trial courts make "specific findings of the ultimate facts established by the evidence, admissions and stipulations which are determinative of the questions involved in the action and essential to support the conclusions of law reached." Quick v. Quick , 305 N.C. 446, 452, 290 S.E.2d 653, 658 (1982). "Ultimate facts are the final resulting effect reached by processes of logical reasoning from the evidentiary facts." In re Anderson , 151 N.C.App. 94, 97, 564 S.E.2d 599, 602 (2002) (citation and quotation marks omitted). The court's order must include "specific ultimate facts to support the judgment, and the facts found must be sufficient for the appellate court to determine that the judgment is adequately supported by competent evidence." Montgomery v. Montgomery , 32 N.C.App. 154, 156–57, 231 S.E.2d 26, 28 (1977) (citations omitted).

B. Willful Abandonment

Respondent-mother asserts "the trial court erred in concluding that [her] parental rights should be terminated solely on the basis of N.C. Gen. Stat. § 7B-1111(a)(7) when there were no findings of willfulness."

N.C. Gen. Stat. § 7B-1111(a)(7) (2015) (emphasis added) establishes grounds for terminating parental rights when "[t]he parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion." In the context of abandonment, "[w]illfulness is ‘more than an intention to do a thing; there must also be purpose and deliberation.’ " In re S.R.G. , 195 N.C.App. 79, 84, 671 S.E.2d 47, 51 (2009) (quoting In re Searle, 82 N.C.App. 273, 275, 346 S.E.2d 511, 514 (1986) ). Because "[w]ilful[l] intent is an integral part of abandonment and ... is a question of fact to be determined from the evidence[,]" Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962), a trial court must make adequate evidentiary findings to support its ultimate finding of willful intent. See In re T.M.H. , 186 N.C.App. 451, 452, 652 S.E.2d 1, 1 (2007) (remanding for further findings "[w]here the trial court failed to make findings of fact and conclusions of law concerning the willfulness of respondent's conduct"). "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, 485 S.E.2d 612, 617 (1997) (citation and quotation marks omitted).

Although "the trial court may consider [a parent's] conduct outside [the six-month] window in evaluating [a parent's] credibility and intentions[,]" C.J.H. , ––– N.C. App. at ––––, 772 S.E.2d at 91 (citations omitted), the "determinative" period for adjudicating willful abandonment is the six consecutive months preceding the filing of the petition. Young , 346 N.C. at 251, 485 S.E.2d at 617. Thus, termination based on abandonment requires findings that "show more than a failure of the parent to live up to [his or her] obligations as a parent in an appropriate fashion." In re S.R.G., 195 N.C.App. at 87, 671 S.E.2d at 53. The findings must "demonstrate that [a parent] had a ‘purposeful, deliberative and manifest willful determination to forego all parental duties and relinquish all parental claims’ to [the child]."

In re S.Z.H. , ––– N.C. App. ––––, ––––, 785 S.E.2d 341, 347 (2016) (quoting S.R.G., 195 N.C.App. at 87, 671 S.E.2d at 53 ) (reversing a termination order based on abandonment for insufficient findings).

Here, respondent-mother's behavior between 28 November 2014 and 28 May 2015 is determinative. The trial court's relevant findings as to respondent-mother's conduct during this period follow:

A. From 2012 to early 2015, when [respondent-mother] was not incarcerated, she showed up late for visits and over time the visits decreased in frequency. [Respondent-mother] was in custody from December 10, 2014 through January 7, 2015, and January 23, 2015 through March 2, 2015, and March 9, 2015 through present.

B. [David] participates in baseball and basketball. [Petitioner-father] notified [respondent-mother] of [David's] game schedule. [Respondent-mother] attended a few of the games. She has not attended any games over the last year.

C. To the knowledge of [petitioner-father] and his wife, [respondent-mother] last saw [David] in March or April of 2014. [Respondent-mother] has a history of asking to see [David] and now [sic] showing up or calling to cancel the visitation.

....

G. [Respondent-mother] did not visit with [David] or contact [David] during November 2014 or December 2014.

....

I. On or about January 7, 2015, [respondent-mother] texted [petitioner-father] telling [petitioner-father] that she loves and misses [David]. [Respondent-mother] did not ask to speak to [David] or ask that a message be conveyed to [David]. [Respondent-mother] did not exercise Court ordered visits with [David] during January 2015.

J. [Respondent-mother] failed to exercise Court ordered visitation during February 2015.

K. [Respondent-mother] failed to exercise Court ordered visitation during March 2015.

L. [Respondent-mother] failed

...