In re L.M.M.

• Decision Date: 17 December 2021
• Docket Number: No. 9A21,9A21
• Citation: 866 S.E.2d 453,379 N.C. 431
• Parties: In the MATTER OF: L.M.M.
• Court: North Carolina Supreme Court

379 N.C. 431

866 S.E.2d 453

In the MATTER OF: L.M.M.

No. 9A21

Supreme Court of North Carolina.

Filed December 17, 2021

Ashley A. Crowder, for petitioner-appellees.

No brief for appellee Guardian ad Litem.

Richard Croutharmel, Raleigh, for respondent-appellant father.

NEWBY, Chief Justice.

¶ 1 Respondent-father appeals from the trial court's order terminating his parental rights to L.M.M. (Lisa).¹ Because we hold the trial court did not err in concluding that grounds existed to terminate respondent's parental rights under N.C.G.S. § 7B-1111(a)(7), we affirm the trial court's order.

¶ 2 This case arises from a private termination action filed by petitioners, Mrs. and Mr. O., who are Lisa's maternal aunt and uncle. Lisa has been in petitioners' care since 7 July 2017 when Lisa's mother passed away and respondent was charged with her murder.

¶ 3 Respondent and Lisa's mother met when they both attended an inpatient rehabilitation facility for substance abuse. They were subsequently "kicked out" for failure to follow the rules. Respondent and the mother were married in 2015 and Lisa was born shortly thereafter. Respondent and the mother continued to engage in substance abuse after Lisa was born.

¶ 4 On 7 July 2017, police were dispatched to the family's residence when respondent called 911 after finding the mother not breathing. Petitioners learned of the mother's passing, and Mrs. O. drove to the residence. Mrs. O. asked respondent if she and Mr. O. could watch Lisa for the weekend, and respondent agreed. Three days later, petitioners filed a complaint for child custody in Mecklenburg County and obtained an ex parte emergency custody order on 11 July 2017. The order did not allow respondent visitation pending future court orders. On 19 July 2017, respondent was arrested and charged with first-degree murder for the mother's death. On 9 October 2017, the District Court, Mecklenburg County, entered a temporary custody order awarding petitioners custody of Lisa.

¶ 5 On 10 May 2018, respondent pled guilty to involuntary manslaughter and was sentenced to thirteen months of imprisonment. He was released from incarceration on or about 8 August 2018. Respondent did not have any contact with petitioners or Lisa during his incarceration. After his release, between 16 October 2018 and 18 January 2019, respondent sent petitioners four money orders totaling $800.00.

¶ 6 Around October or November of 2018, respondent hired an attorney to assist him with the pending custody case in Mecklenburg County. On 7 November 2018, petitioners filed for and received another ex parte emergency custody order. Around December of 2018, respondent fired his attorney. Respondent did not thereafter hire another attorney to represent him in the custody proceeding.

¶ 7 On or about 9 November 2018, petitioners filed a petition in Stanly County to terminate respondent's parental rights to Lisa. On 3 September 2019, petitioners voluntarily dismissed the action and filed a new petition in Gaston County seeking to terminate respondent's parental rights, alleging the grounds of neglect, dependency, and willful abandonment. See N.C.G.S. § 7B-1111(a)(1), (6)–(7) (2019).

¶ 8 On 27 October 2020, the trial court entered an order concluding that grounds existed to terminate respondent's parental rights based upon neglect and willful abandonment. N.C.G.S. § 7B-1111(a)(1), (7). The court further concluded it was in Lisa's best interests that respondent's parental rights be terminated. Accordingly, the trial court terminated respondent's parental rights. Respondent seeks appellate review.²

¶ 9 On appeal respondent argues the trial court erred by concluding grounds existed to terminate his parental rights. A termination of parental rights proceeding consists of an adjudicatory stage and a dispositional stage. N.C.G.S. §§ 7B-1109, -1110 (2019); In re Montgomery , 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984). At the adjudicatory stage, the petitioner bears the burden of proving by "clear, cogent, and convincing evidence" the existence of one or more grounds for termination under subsection 7B-1111(a). N.C.G.S. § 7B-1109(f). If the petitioner meets his burden during the adjudicatory stage, "the court proceeds to the dispositional stage, at which the court must consider whether it is in the best interests of the juvenile to terminate parental rights." In re D.L.W. , 368 N.C. 835, 842, 788 S.E.2d 162, 167 (2016) (citing In re Young , 346 N.C. 244, 247, 485 S.E.2d 612, 614–15 (1997) ; N.C.G.S. § 7B-1110 (2015) ).

¶ 10 Respondent only challenges the trial court's determination at the adjudicatory stage that grounds existed to terminate his parental rights.

"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). "Moreover, we review only those [challenged] findings necessary to support the trial court's determination that grounds existed to terminate respondent's parental rights." In re T.N.H. , 372 N.C. 403, 407, 831 S.E.2d 54, 58–59 (2019).

In re K.N.K. , 374 N.C. 50, 53, 839 S.E.2d 735, 737–38 (2020) (alteration in original).

I. Willful Abandonment

¶ 11 A 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 or motion." N.C.G.S. § 7B-1111(a)(7). "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. at 251, 485 S.E.2d at 617 (quoting In re Adoption of Searle , 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986) ). "[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). "Whether a biological parent has a willful intent to abandon his child is a question of fact to be determined from the evidence." In re Searle , 82 N.C. App. at 276, 346 S.E.2d at 514. "[T]he ‘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) ).

¶ 12 Petitioners filed the petition to terminate respondent's parental rights on 3 September 2019. Thus, the relevant six-month window for willful abandonment is 3 March 2019 to 3 September 2019.

¶ 13 Respondent challenges several of the trial court's findings of fact as unsupported by the evidence. We first address respondent's challenge to finding of fact 100. The trial court found:

[Respondent] claims that he stopped sending money, cards and gifts because his probation officer told him that he could not have any contact with the victim's family. There is no court order or document that says this. In fact, [respondent] had been having "contact" through sending support to Petitioners for the benefit of the juvenile, and sending the Christmas gift items. The court does not find this credible as [respondent] had two attorneys at this time, his hired representation in the Mecklenburg County custody case and the appointed attorney in the Stanley [sic] County TPR matter.

Respondent argues this finding "is fallaciously reasoned because the absence of evidence is not evidence of absence," and the fact that there was no collateral evidence to support respondent's testimony does not "negate its veracity." He further argues that the finding impermissibly shifts the evidentiary burden to him. We disagree.

¶ 14 It is the trial court's responsibility "to pass upon the credibility of the witnesses and the weight to be given their testimony and the reasonable inferences to be drawn therefrom." In re A.R.A. , 373 N.C. 190, 196, 835 S.E.2d 417, 422 (2019) (quoting In re D.L.W. , 368 N.C. at 843, 788 S.E.2d at 167–68 ). Here the finding states that the trial court did not find respondent's testimony credible. Because the trial court is the proper fact-finding body to make credibility determinations, we reject respondent's argument. Additionally, the trial court did not improperly shift the burden to respondent. Rather, the court's finding demonstrates that respondent's testimony failed to rebut petitioners' clear, cogent, and convincing evidence that respondent willfully stopped sending money, cards, and gifts for Lisa. In re A.C. , 378 N.C. 377, 2021-NCSC-91, ¶ 30, 861 S.E.2d 858 (rejecting the argument that the trial court had inappropriately shifted the evidentiary burden to the respondent and concluding instead that the respondent failed to rebut the petitioner's clear, cogent, and convincing evidence).

¶ 15 Respondent also challenges findings of fact 82 and 112, in which the court found that there was no prohibition of contact between respondent and Lisa or petitioners after May 2018, and that respondent was not prohibited from contacting Lisa during the relevant six-month period "due to sickness, incarceration, or any other valid reason." Respondent argues that his probation officer told him to stop sending things to petitioners in 2019, and that petitioners have not refuted this argument. As we reject respondent's challenges to finding of fact 100, we likewise reject his challenges to findings of fact 82 and 112 insofar as his arguments are based on the credibility of his testimony. There was no other...