In re A.H.D.

Decision Date07 February 2023
Docket NumberCOA22-382
CourtCourt of Appeal of North Carolina (US)

Heard in the Court of Appeals 10 January 2023.

Appeal by respondent-father from orders entered 7 January 2022 by Judge Robert M. Wilkins in District Court, Randolph County Nos. 20 JT 20, 20 JT 21

Kimberly Connor Benton for respondent-father.

No brief filed for petitioner-mother.


Father appeals from two orders terminating his parental rights as to each of his two children on the grounds he willfully failed to pay child support for a year or more preceding the filing of the termination petitions pursuant to N.C. Gen. Stat § 7B-1111(a)(4) (2019). Because the Petitions gave Father adequate notice as to the acts, omissions, or conditions at issue in the case, they are a sufficient basis for the termination proceeding. Although the trial court failed to make Findings of Fact based upon the proper standard of proof of clear, cogent, and convincing evidence the record includes sufficient evidence upon which the trial court could make the required findings to support termination of Father's parental rights under § 7B-1111(a)(4), so we must reverse and remand.

I. Background

On or about 14 January 2020, Mother filed two "Verified Petition[s] For Termination of Parental Rights" to terminate Father's parental rights as to their two children, Ariel and Vanessa.[1] (Capitalization altered.) After including information about Mother's and Father's residences and the names and birthdates of the children, the Petitions alleged, in relevant part, Mother had "physical custody" of both children and alleged the following identical "grounds for termination" of Father's parental rights:

b. That for more than one (1) year [Father] has had no contact with the minor child. [Father] has not visited or contacted the minor child since May 6, 2018;
c. That for more than one (1) year, [Father] has failed and refused to pay child support. He has not paid child support since May 6, 2018;
d. That [Father] is therefore subject to termination of his parental rights pursuant to North Carolina General Statutes § 7B[.]

On or about 5 March 2020, Father filed responses admitting his and Mother's residences and the children's names and birthdates but denying all other allegations.

The trial court held a hearing in the termination proceeding on 1 November 2021. The trial court indicated at the start of the hearing that it first wanted "to hear testimony and evidence about whether there are any grounds for termination of parental rights" and then would receive testimony of the children's best interests after that "if appropriate[.]"

During the portion of the hearing focused on the grounds for terminating parental rights, Mother and Father testified. Mother first testified she took physical custody of the children after the parents separated on 6 May 2018 because Father went to jail for committing a crime against Mother's sister. Following the separation, Father had no contact with the children because "[h]e never asked." Mother also testified she got a custody order granting her permanent custody in June 2018; she had a child support order entered in July 2018. The child support order required Father to pay approximately $1,100 per month. Mother testified between 2018 and 2020 when she filed the Petitions, Father had "just refused to pay" leading to "over $20,000.00 in arrears[,]" although after the Petitions were filed he made "three or four payments" of "at most $500" as a result of "[c]hild support enforcement[.]"

At the grounds portion of the termination hearing, Father testified about his employment and child support payments. Father operated his own store before his arrest, but Mother sold all the contents of his store right after he went to jail. Upon his pre-trial release from jail at the end of May 2018, Father took about six months "to get started back up" running "another small business[,]" and he continued doing that work until he was convicted of the crime against Mother's sister in February 2021 and sentenced to over a decade in prison. Father testified he gave Mother cash payments around the "end of 2018" that were "for the benefit of the children[.]" Father also said he gave Mother "cash a few times" in 2019, but he was not able to pay the full $1,100 per month required by the child support order. Beyond his employment and child support, Father testified he tried to reach out to Mother and the children "[a]t least a couple times a week" but Mother told him to stop calling her. Father could not have visits with the children or contact them because of the conditions of his house arrest.

Following that testimony, both attorneys made arguments on the grounds for termination. The arguments by Mother's attorney focused on the ground Father had failed to pay child support. Father's attorney first argued the abandonment ground did not apply because: the trial court lacked clear, cogent, and convincing evidence given the conflicting testimony; his pre-trial release conditions prevented him from having contact with the children; and he did not have Mother's new address where he could send letters to the children. As to the willful failure to pay child support ground, Father's attorney argued there was no evidence of the child support order beyond Mother's testimony and there was too much "confusing" and "conflicting" testimony about payments Father made for there to be clear, cogent, and convincing evidence of a willful failure to pay.

Following those arguments, the trial court ruled the abandonment ground was not supported because "there [was] a question as to how wilful [sic] his failure to have contact with the children would have been" given the testimony about pre-trial release conditions and the lack of "legal documents" on such conditions. The trial court found the willful failure to pay child support ground "exist[ed]" based on Father's non-compliance "with the terms of the child support order that was reportedly entered approximately July 2018." The trial court then moved on to the best interest stage without making any additional oral findings or indicating the standard of proof it was employing for the Findings of Fact.

At the best interest stage, the guardian ad litem ("GAL") for both children, Mother, Mother's new husband, and Father testified. The GAL testified about his investigative steps and recommendation, and the court received his report into evidence. Mother testified about: Father's relationship with the children; Father yelling and making demeaning comments towards her in front of the children; her new husband, and his relationship with the children, including his plan to adopt them; the relationship her family had with the children; and her employment and child care arrangements. Mother's new husband testified about: his relationship with the children, his plan to adopt the children following the termination proceedings, and his family's relationship with the children. Finally, Father testified about: his relationship with the children, his family's relationship with the children, and his lack of child support payments.

After that testimony, Mother's attorney, Father's attorney, and the GAL made arguments on best interests. The trial court then reviewed the required factors under N.C. Gen. Stat. § 7B-1110 and ruled it was in the children's best interests to terminate Father's parental rights.

On 7 January 2022, the trial court entered two Orders, one for each child, terminating Father's parental rights. Each Order began with the trial court making Findings of Fact as to adjudicatory grounds and then as to dispositional best interests, but the trial court did not state the standard of proof for the Findings of Fact. In the adjudicatory grounds portion of each Order, the trial court made Findings on custody and the child's name and residence; the history of Mother and Father's relationship; and Father's subsequent incarceration. The trial court then made two Findings on child support that were identical in each Order:

8. [Mother] testified that in July, 2018, a child support order was put in place for [Father] to pay child support. [Father] has failed and refused for more than one (1) year to pay child support pursuant to the child support order for the use and benefit of the minor child. [Father] has not paid child support since May 6, 2018, and he is more than $20,000.00 in arrears.
9. Pursuant to 7B-1111(a)(4), [Mother] has custody of the minor child by agreement of the parties, and [Father], whose parental rights are sought to be terminated for a period of one year or more next preceding the filing of the Petition, has willfully and without justification failed to pay for the care, support, education of the minor child as required and decreed by the child support order. Therefore, there are grounds to terminate parental rights against [Father].

The trial court then made best interests Findings as to both children addressing: their relationships with Mother, Father, and Mother's new husband; Mother's allegations about Father's abusive actions towards Mother; the GAL's recommendation; and the plan for Mother's new husband to adopt the children.

Based on these Findings, the trial court concluded all parties were "properly before" it; "[t]here exist grounds for the termination of parental rights" of Father; and "[i]t would be in the best interest of the minor" children if Father's parental rights were terminated. Based upon those Findings and Conclusions, the trial court terminated Father's parental rights. Father timely filed written notice of appeal.[2]

II. Analysis

On appeal, Father challenges both the termination Petitions and the adjudicatory portion of the termination...

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