In re A.G.D.

• Decision Date: 01 May 2020
• Docket Number: No. 258A19,258A19
• Citation: 841 S.E.2d 238,374 N.C. 317
• Parties: In the MATTER OF: A.G.D. and A.N.D.
• Court: North Carolina Supreme Court

374 N.C. 317

841 S.E.2d 238

In the MATTER OF: A.G.D. and A.N.D.

No. 258A19

Supreme Court of North Carolina.

Filed May 1, 2020

No brief filed for petitioner-appellee mother.

Edward Eldred, for respondent-appellant father.

ERVIN, Justice.

Respondent-father Aaron D. appeals from orders¹ entered by the trial court terminating his parental rights in his minor children A.G.D. and A.N.D. on the grounds of willful abandonment.² After careful consideration of respondent-father's challenge to the trial court's termination orders in light of the record and the applicable law, we conclude that the trial court's termination orders should be affirmed.

Petitioner Amber D. and respondent-father were married in April 2008, with Amy having been born to the parents in 2008 and with Andy having been born to the parents in 2011. The parties separated in March 2013 after Amy revealed that respondent-father had committed repeated sexual assaults against her. Along with a number of other individuals, respondent-father was subsequently charged with having committed multiple criminal acts of sexual abuse in the state and federal courts, including crimes involving child pornography. On 27 May 2014, an order was entered granting the mother sole legal and physical custody of the children, with respondent-father being ordered to have no contact with them in the absence of a further order of the court.³ A judgment granting an absolute divorce between the parents was entered in July 2014.

On 26 June 2018, the mother filed petitions seeking to have respondent-father's parental rights in the children terminated on the grounds that he had willfully failed to pay any portion of the cost of the children's care and that he had willfully abandoned the children. See N.C.G.S. § 7B-1111(a)(4), (7) (2019). After a hearing held on 25 February 2019, the trial court entered orders terminating respondent-father's parental rights in both children on 6 March 2019,⁴ with this decision resting upon determinations that respondent-father had willfully abandoned Amy and Andy and that the termination of respondent-father's parental rights in the children would be in their best interests. Respondent-father noted appeals to this Court from the trial court's termination orders.

In seeking to persuade us to grant relief from the trial court's termination orders, respondent-father argues that the trial court erred by determining that his parental rights in the children were subject to termination on the grounds of willful abandonment in light of the fact that he had been "prohibited ... from having any contact with his children." According to respondent-father, "it was not within [his] power to display his love and affection for his children because he was court-ordered not to contact them." In respondent-father's view, the trial court's reliance upon his failure to seek relief from the earlier custody and visitation order was misplaced given that the record contained no evidence tending to show that he had the ability to make such a filing or that there had been "any change of circumstances warranting the filing of" such a motion, citing Shipman v. Shipman , 357 N.C. 471, 474, 586 S.E.2d 250, 253 (2003) (stating that a party is only entitled to seek to have a prior custody order modified in the event that "there has been a substantial change in circumstances and that the change affected the welfare of the child"), with it "beg[ging] belief" that respondent-father "could have filed a custody motion every six months for four years." As a result, since respondent-father "was court-ordered not to contact [his children] and could only have shown them filial affection by disobeying a court's order," respondent-father contends that the trial court's termination orders should be reversed.⁵

"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) ). A trial court may terminate a parent's parental rights in his or her children based upon a determination that "[t]he 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).⁶ In order to find that a parent's parental rights are subject to termination based upon willful abandonment, the trial court must make findings of fact that show that the parent had a "purposeful, deliberative and manifest willful determination to forego all parental duties and relinquish all parental claims to [the child]," In re N.D.A. , 373 N.C. 71, 79, 833 S.E.2d 768, 774 (2019) (quoting In re D.M.O. , 250 N.C. App. 570, 573, 794 S.E.2d 858, 861–62 (2016) ), with a parent having abandoned his or her child for purposes of N.C.G.S. § 7B-1111(a)(7) in the event that he "withholds his presence, his love, his care, the opportunity to display filial affection, and willfully neglects to lend support and maintenance ...." Pratt v. Bishop , 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962).

We further note that "[o]ur precedents are quite clear—and remain in full force—that ‘[i]ncarceration, standing alone, is neither a sword nor a shield in a termination of parental rights decision.’ " In re M.A.W., 370 N.C. 149, 153, 804 S.E.2d 513, 517 (2017) (second alteration in original) (quoting In re P.L.P., 173 N.C. App. 1, 10, 618 S.E.2d 241, 247 (2005), aff'd per curiam , 360 N.C. 360, 625 S.E.2d 779 (2006) ). Although "a parent's options for showing affection while incarcerated are greatly limited, a parent will not be excused from showing interest in [the] child's welfare by whatever means available. " In re C.B.C. , 373 N.C. 16, 19–20, 832 S.E.2d 692, 695 (2019) (quoting In re D.E.M., 257 N.C. App. 618, 621, 810 S.E.2d 375, 378 (2018) ). As a result, our decisions concerning the termination of the parental rights of incarcerated persons require that courts recognize the limitations for showing love, affection, and parental concern under which such individuals labor while simultaneously requiring them to do what they can to exhibit the required level of concern for their children. In re K.N., 373 N.C. 274, 283, 837 S.E.2d 861, 867–68 (2020) (stating that "the extent to which a parent's incarceration or violation of the terms and conditions of probation support a finding of neglect depends upon an analysis of the relevant facts and circumstances, including the length of the parent's incarceration").

In the course of determining that respondent-father's parental rights in the children were subject to termination on the grounds of willful abandonment, the trial court found as a fact that:

5. [Respondent-father] was not present, but represented by Adam E. Anderson, Esq. [Respondent-father's] Attorney informed the Court that he met with [respondent-father], but was unable to ascertain his wishes as to whether he wished to contest this action or not. [Respondent-father] also indicated he did not want to be present due to wanting to focus his efforts on "trial preparation" for his upcoming criminal matters. [Respondent-father's] Attorney also reached out to [respondent-father's] Federal Attorney, Anthony Martinez, who spoke with [respondent-father] and indicated that he was also unable to ascertain whether [respondent-father] wished to contest this matter. [Respondent-father's] Attorney made a motion to continue this matter, which was denied. This matter was filed on June 26, 2018 and was noticed on well in advance of the trial date.

....

10. Respondent[-father] has not participated in the care of the [children] in the last six (6) months and has not had any meaningful interaction with the [children] since March 8, 2013.

....

12. Respondent[-father] has pending criminal charges for child related sex offenses which have prevented and prevent him from being a meaningful part of the [children's] live[s].

13. [Amy] was four (4) years old when she disclosed that she was the victim of a sexual assault by her father. Upon disclosure, [the mother] made [respondent-father] leave the home and reported these allegations to the Ashe County Sheriff's Department, who started an investigation. [Respondent-father] was charged with fourteen (14) counts of sexual assault in state court and eight (8) charges in Federal Court. [The mother] did not know the exact names of the charges but did testify that they related to these allegations and other sexual acts including child pornography.

14. The Federal investigation also led to [respondent-father] being charged along with others for sexual acts including child pornography....

15. During the time these acts were committed, [Amy] was two to four (2–4) years old. Her brother, [Andy], was a newborn and nonverbal at the time.

....

18. [Respondent-father] has not seen or spoken to the children since March 8, 2013. About eighteen (18) months after this date, he contacted the [mother] requesting to see the children, but this is the only attempt he has made to contact the children.

....

22. .... [The children] have no bond with [respondent-father. Amy] refers to [respondent-father] as "Aaron", not "dad". ....

24. The [mother] was granted sole legal and physical custody of the children in 2014. [Respondent-father] was not allowed further visitation "absent further orders of the Court." [Respondent-father] has taken no action to file anything with the Court seeking visitation with the children.

25. [Respondent-father] has not made any attempt to contact or see the [children] for the six (6) months next preceding the filing of this action and has not had any meaningful interaction with the [children] since March of 2013.

26. [Respondent-father] has willfully abandoned the juvenile[s] for at least six (6) months immediately preceding the filing of this action. The actions of [responden

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