In re N.W., 348A21

Docket Nº348A21
Citation2022 NCSC 91
Case DateJuly 15, 2022
CourtUnited States State Supreme Court of North Carolina

2022-NCSC-91

IN THE MATTER OF: N.W., J.W., L.W.

No. 348A21

Supreme Court of North Carolina

July 15, 2022


Appeal pursuant to N.C. G.S. § 7B-1001(a1)(1) (2019) from an order entered on 26 May 2021 by Judge William B. Davis in District Court, Guilford County. This matter was calendared in the Supreme Court on 1 July 2022, but was determined on the record and briefs without oral argument pursuant to Rule 30(f) of the North Carolina Rules of Appellate Procedure.

Tharrington Smith, LLP, by Jeffrey R. Russell and Evan B. Horwitz, for petitioner-appellant mother.

Garron T. Michael, for respondent-appellee father.

ERVIN, JUSTICE

¶ 1 Petitioner-mother Kelly N., the mother of N.W., J.W., and L.W., appeals from a trial court order dismissing her petition seeking to have the parental rights of respondent-father Josey W., the children's father, terminated. After careful consideration of petitioner-mother's challenges to the trial court's dismissal order in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.

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I. Background

¶ 2 Petitioner-mother and respondent-father were married in October 2006 and separated in May 2015. All three of the children at issue in this case were born during the marriage.

¶ 3 On 8 April 2016, petitioner-mother applied for an Order of Protection in Kentucky on the grounds that respondent-father had committed acts of physical abuse against her in the past and was currently making threats against her and obtained the entry of an Emergency Protective Order that awarded temporary custody of the children to petitioner-mother and prohibited respondent-father from contacting petitioner-mother and the children. After a hearing held on 21 April 2016, the Kentucky court entered a Domestic Violence Order against respondent-father that prohibited him from committing further acts of abuse and ordered him to refrain from contacting petitioner-mother and the children for a period of one year. Although respondent-father sought appellate review of the protective order, the Kentucky Court of Appeals upheld it on appeal.

¶ 4 While respondent-father's appeal was pending, the parties agreed to the entry of an order in June 2016 modifying the protective order so as to allow respondent-father to have supervised visitation with the children at Sunflower Kids, Inc., a Kentucky childcare center. Subsequently, respondent-father visited with the children between June and October 2016, with these visits having ended as a result

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of the fact that respondent-father canceled three of them given his out-of-state work obligations. Although respondent-father filed a motion seeking to have the protective order amended so that he could have telephonic contact with the children while he was out of town, petitioner-mother opposed the proposed modification and it was never approved. As a result, respondent-father has not had any further contact with the children since that time.

¶ 5 In November 2016, the parents agreed to the entry of an order allowing the Kentucky court to appoint "The Office of the Friend of the Court" to provide them with assistance in addressing their disputes concerning custody of and visitation with the children. In light of that agreement, the Kentucky court appointed a Friend of the Court in December 2016 with instructions to conduct a timesharing risk assessment and make recommendations consistent with the best interests of the children. In March 2017, petitioner-mother sought and obtained an extension of the protective order from the Kentucky court until October 2020.

¶ 6 In November 2017, the parents agreed to a custody arrangement as part of a Property Settlement Agreement, which was, in turn, incorporated into a decree dissolving their marriage that was entered on 8 December 2017. In accordance with this agreement and the resulting custody order, petitioner-mother was awarded sole custody of the children, with respondent-father being allowed to seek review of the custody arrangement within one year after the entry of the custody order upon his

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successful completion and implementation of the recommendations made by the Friend of the Court and to request the right to visit with and have contact with the children ninety days after his receipt of the Friend of the Court's recommendations. In addition, respondent-father was ordered to continue making monthly child support payments of $1,500 to petitioner-mother by means of a wage assignment process.

¶ 7 In February 2018, respondent-father's father filed a motion seeking grandparent visitation with the children, with respondent-father having submitted an affidavit in support of this request. Petitioner-mother opposed the paternal grandfather's motion and sought to have it dismissed. After giving notice to the Kentucky court of her intent to relocate in July 2018 petitioner-mother moved to North Carolina with the children in August 2018.

¶ 8 In September 2018, respondent-father filed a motion seeking to be allowed to have supervised visitation with the children with the Kentucky court. Petitioner-mother opposed respondent-father's motion and sought to have it dismissed. In reply to petitioner-mother's dismissal motion, respondent-father stated that he did not know petitioner-mother's new address and requested to be provided with that information so that "he c[ould] pursue timeshare in the new jurisdiction." On 31 October 2018 and 16 November 2018, respectively, the Kentucky court declined to exercise jurisdiction over the paternal grandfather's visitation motion and respondent-father's motion for supervised visitation and dismissed those motions on

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the grounds that neither the parents nor the children resided in Kentucky at that time.

¶ 9 On 25 February 2020, respondent-father filed a petition seeking to have the Kentucky child custody order registered in Guilford County. On 20 March 2020, petitioner-mother filed a petition seeking to have respondent-father's parental rights in the children terminated. On 7 May 2020, respondent-father filed an answer in which he denied the material allegations contained in the termination petition and moved to dismiss it based upon an alleged jurisdictional defect and the petition's alleged failure to state a claim for which relief could be granted.

¶ 10 On 14 May 2020, petitioner-mother filed a motion seeking leave to amend her termination petition for the purpose of curing the alleged jurisdictional defect. On 15 September 2020, the trial court entered an order granting petitioner-mother's amendment motion and appointing a guardian ad litem for the children.

¶ 11 On 18 September 2020, petitioner-mother filed an amended termination petition in which she alleged that respondent-father's parental rights in the children were subject to termination on the basis of willful abandonment pursuant to N.C. G.S. § 7B-1111(a)(7) on the grounds that, since October 2016, respondent-father had not had any contact with the children, had failed to maintain a bond with the children, and had failed to send anything to the children or acknowledge their birthdays; that respondent-father had failed to comply with the Friend of the Court's

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recommendation that he seek modification of the custody agreement; that respondent-father had not contacted or seen the children since they had relocated to North Carolina; and that respondent-father "ha[d] withheld his love and affection from the juveniles and ha[d] intentionally foregone all parental duties and responsibilities with regard to the juveniles (with the exception of child support, which is paid via wage withholding)" and on the grounds that the termination of his parental rights would be in the children's best interests. In a response to the amended petition filed on 6 October 2020, respondent-father asserted that his failure to communicate or see the children had resulted from compliance with lawful orders of the Kentucky court and that he had paid support for the children each month since 2016.

¶ 12 The issues raised by respondent-mother's termination petition came on for hearing before the trial court on 11 May 2021. On 26 May 2021, the trial court entered an order dismissing the termination petition at the conclusion of petitioner-mother's evidence based upon a determination that petitioner-mother had failed to establish that respondent-father had willfully abandoned the children. Petitioner-mother noted an appeal to this Court from the trial court's dismissal order.

II. Analysis

¶ 13 In seeking relief from the dismissal order before this Court, petitioner-mother argues that the trial court erred by determining that respondent-father's parental

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rights in the children were not subject to termination on the basis of willful abandonment pursuant to N.C. G.S. § 7B-1111(a)(7). "Our Juvenile Code provides for a two-step process for termination of parental rights proceedings consisting of an adjudicatory stage and a dispositional stage." In re Z.A.M., 374 N.C. 88, 94 (2020). At the adjudicatory stage, the trial court must "take evidence, find the facts, and [ ] adjudicate the existence or nonexistence of any of the circumstances set forth in [ N.C. ]G.S. [§] 7B-1111 which authorize the termination of parental rights of the respondent." N.C. G.S. § 7B-1109(e) (2021). "The burden in such proceedings [is] upon the petitioner . . . and all findings of fact shall be based on clear, cogent, and convincing evidence." N.C. G.S. § 7B-1109(f) (2021). "Should the court determine that circumstances authorizing termination of parental rights do not exist, [it] shall dismiss the petition . . ., making appropriate findings of fact and conclusions." N.C. G.S. § 7B-1110(c) (2021).

¶ 14 We review orders entered by the trial court in termination proceedings "to determine whether the findings are supported by clear, cogent and...

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