In re McLemore

• Decision Date: 01 August 2000
• Docket Number: No. COA99-619.,COA99-619.
• Citation: 533 S.E.2d 508,139 NC App. 426
• Parties: In the Matter of Kayla Ann McLEMORE and Taylor Lynn McLemore.
• Court: North Carolina Court of Appeals

533 S.E.2d 508

139 NC App. 426

In the Matter of Kayla Ann McLEMORE and Taylor Lynn McLemore.

No. COA99-619.

Court of Appeals of North Carolina.

August 1, 2000.

Law Office of Elizabeth T. Hodges, by Elizabeth T. Hodges and K. Mitchell Kelling, Charlotte, for petitioner-appellant.

Charles W. Porter, III, Charlotte, for respondent-appellee.

LEWIS, Judge.

Petitioner Jeni Carder and respondent Samuel Lee Benton were married in June 1991 and separated on 21 September 1992. Twins were born of this marriage, Kayla Ann McLemore and Taylor Lynn McLemore, on 6 May 1993. The parties were divorced in 1994, and petitioner was thereafter granted permanent custody of the minor children. At the time of this action, respondent had not seen the children since June 1993. In March 1994, respondent was ordered to pay child support in the amount of $131.80 per week for Taylor Lynn McLemore; petitioner has received no payments. At the time of this action, the last time respondent had provided financial assistance for his children was in June 1993, when he gave petitioner $200. Before that, respondent had contributed approximately $150 for the support of his children. On 20 August 1997, petitioner filed a petition to terminate the parental rights of respondent with regard to Taylor Lynn McLemore. Only that petition is presently before us on appeal; thus, we only address respondent's parental rights in regard to Taylor and not Kayla. Among petitioner's allegations relevant to this appeal are that respondent failed without justification to pay any child support and that respondent willfully abandoned the child for at least six months preceding the filing of the petition to terminate parental rights.

At the time the petition in this case was filed, Chapter 7A of the North Carolina General Statutes governed termination of parental rights, providing for a two-stage termination proceeding. First, at the adjudication stage, the petitioner must demonstrate by clear, cogent and convincing evidence that one or more of the grounds warranting termination, as set forth in G.S. 7A-289.32, exist. N.C. Gen.Stat. § 7A-289.30(e). Upon a finding that grounds for terminating parental rights are present, the court moves to the disposition stage, determining whether the termination of parental rights is in the best interest of the child. N.C. Gen.Stat. § 7A-289.31(a). The standard for review in termination of parental rights cases is whether the court's findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in turn, support the conclusions of law. In re Ballard, 63 N.C.App. 580, 585, 306 S.E.2d 150, 153 (1983), modified on other grounds, 311 N.C. 708, 319 S.E.2d 227 (1984)

.

G.S. 7A-289.32 provides in relevant part: The court may terminate the parental rights upon a finding of one or more of the following:

...

(5) One parent has been awarded custody of the child by judicial decree, or has custody by agreement of the parents, and the other parent whose parental rights are sought to be terminated has for a period of one year or more next preceding the filing of the petition willfully failed without justification to pay for the care, support and education of the child, as required by said decree or custody agreement.

...

(8) The parent has willfully abandoned the child for at least six consecutive months immediately preceding the filing of the petition....

(Emphasis added.) The court in this case concluded that petitioner demonstrated neither of these statutory grounds warranting termination, and thus, did not reach the question of the best interests of the child and denied the petitioner's motion. Based upon our examination of the order, we reverse the trial court's order with regard to Taylor.

Because we hold the trial court's findings support the court's conclusion that respondent willfully abandoned his child, we need only address that statutory ground. The trial court here concluded respondent's absence from his child's life was not willful under G.S. 7A-289.32(8) "because of the substance abuse and alcohol issues of the father within the meaning of Bost v. Van Nortwick and the incarceration of the father within the meaning of In re Harris and In re Maynor" (citations omitted).

"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). "It has been held that if a parent withholds his presence, his love, his care, the opportunity to display filial affection, and [willfully] 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 word "willful" encompasses more than a mere intention, but also purpose and deliberation. In re Adoption of Searle, 82 N.C.App. 273, 275, 346 S.E.2d 511,514 (1986).

In our opinion, the trial court here interpreted Bost, Harris and Maynor as allowing the fact of a respondent's alcohol abuse and incarceration, standing alone, to negate a finding of willfulness under the statute. We do not agree. In Bost, we held the trial court erred in concluding the respondent willfully abandoned his children for a period of at least six consecutive months preceding the filing of the petition pursuant to G.S. 7A-289.32(8). Bost v. Van Nortwick, 117 N.C.App. 1, 18, 449 S.E.2d 911, 920-21 (1994).

As to the statutory factor of willful abandonment, Bost requires the court to consider, during the relevant six month period, the financial support respondent has provided to the child, as well as the respondent's emotional contributions to the child. In addressing respondent's financial contributions, the Bost court noted, "`[A] mere failure of the parent of a minor child in the custody of a third person to contribute to its support does not in and of itself constitute abandonment. Explanations could be made which would be inconsistent with a [willful] intent to abandon.'" Id. at 18, 449 S.E.2d at 921 (quoting Pratt v. Bishop, 257 N.C. 486, 501-02, 126 S.E.2d 597, 608 (1962)). In addressing the second consideration of emotional support, the court must consider a respondent's display of "love, care and affection" for his children. Id.

When considering the respondent's financial support as part of its abandonment analysis, the Bost court indicated that respondent's severe alcoholism and financial inattentiveness due to his lack of gainful employment negated a finding of willful abandonment. It was relevant that the respondent in Bost lost his driver's license due to his alcohol related offenses in 1985 and was imprisoned in 1988 for driving while his license was revoked. Id. at 19, 449 S.E.2d at 920. However, necessary to the court's analysis was the fact that respondent made significant financial contributions to his children; during the six months under consideration, he paid $8500 in back child support. Id. at 17, 449 S.E.2d at 920. When considering the respondent's emotional contributions as part of the abandonment analysis, the Bost court found that respondent visited the children at least four times in the preceding six months and had expressed to the...