In re A.R.B.

• Docket Number: COA22-694
• Decision Date: 06 June 2023
• Parties: IN THE MATTER OF: A.R.B.
• Court: North Carolina Court of Appeals

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IN THE MATTER OF: A.R.B.

No. COA22-694

Court of Appeals of North Carolina

June 6, 2023

Heard in the Court of Appeals 26 April 2023.

Appeal by Respondent-Father from Order filed 6 June 2022 by Judge Emily Cowan in Henderson County No. 20 JT 172 District Court.

Vitrano Law Offices, PLLC, by Sean P. Vitrano, for Respondent-Appellant Father.

Emily Sutton Dezio, for Petitioner-Appellee Mother.

STADING, JUDGE

Respondent-Father ("Father") appeals from the trial court's Amended Order terminating his parental rights to his child based on willful abandonment and neglect. Father argues (1) that the trial court abused its discretion in granting a Rule 60(a) motion to amend the Original Order terminating his parental rights and (2) in the alternative, that there is no clear, cogent, and convincing evidence to support the trial court's findings that Father willfully abandoned his child. For the reasons set forth below, we vacate and remand the Order of the trial court with instructions consistent with this Opinion.

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I. Background

"Adam,"^[1] born 23 April 2018, is the child of Petitioner-Mother, Miranda Burlseon ("Mother"), and Father, Brandon Ezequiel Johnson. At the time of Adam's birth, Mother was seventeen years old, and Father was nineteen years old. The parties were never married. Since his birth, Adam resided exclusively with Mother.

On 26 June 2018, Father initiated a custody action in Henderson County, requesting custody of Adam and child support. Mother counterclaimed for the same. In April 2019, the court awarded joint legal custody of Adam to both parties, with Adam living primarily with Mother, and Father receiving supervised visitation that would eventually progress to unsupervised visits. The court determined Father "had issues with [m]arijuana use" and ordered him to complete "a 12-panel hair follicle drug test by May 13, 2019 and to present the results of said test to [Mother]'s attorney of record."

In August 2018, when Adam was four months old, Mother began a relationship with Kemper Henderson. Throughout Adam's early years, Henderson was very involved in Adam's daily care. Mother and Henderson married on 10 October 2020 and moved to South Carolina with Adam.

In May 2019, Father attended three, two-hour-long, supervised visits with Adam at Mother's home. According to Mother, Father, and Henderson, the visits

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went well, and all parties were cordial and friendly with one another. On May 17, 2019, Father delivered a box of diapers and wipes to Mother and visited with Adam. After this visit, Father ceased communication with Mother and failed to attend other scheduled visitations. On 3 June 2019, Mother filed a "Motion to Show Cause and a Motion to Modify Custody based upon [Father]'s failure to contact the minor child, nor to produce the court-ordered drug test results." The matter was noticed for hearing but was never heard and removed from the district court's calendar on 14 May 2020.

On 21 June 2019, Father contacted Mother, stating he completed his follicle drug test. Mother questioned his lack of contact and failure to attend visits. Father stated Mother's attorney contacted him and told him that he could not visit Adam until he completed his drug test. Mother claims her attorney did not contact Father. Father admits this was the last time he attempted to contact Mother and that he has not seen Adam since May 2019.

On 7 December 2020, Mother petitioned for termination of Father's parental rights. After he was served, Father filed a pro-se answer on 5 February 2021 and an additional answer through appointed counsel on 24 March 2021. The district court appointed a Guardian ad Litem ("GAL"), but the court dismissed the first GAL for failure to complete services, thereby delaying the hearing. The court appointed

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Christopher Reed to be Adam's GAL. On 16 February 2022, with both parties present, the district court held a hearing on the petition.^[2]

The court heard testimony from Father and Mother, as well as Andrea Straton, Adam's maternal grandmother, and Cindy Frickel, Father's family friend. The court also considered the GAL report, filed on 16 February 2022. The report detailed the GAL's interactions with Mother, Father, and Adam, noting that while Father loves Adam, Father "admits and recognizes that since he has not seen [Adam] since May 2019, he currently had no bond with his son, and his son would not recognize him as his father." The GAL's report concluded that it was in Adam's best interest that Father's parental rights be terminated to allow for Adam's adoption by Henderson. Ultimately, the court found that Father had abandoned and neglected Adam, and it was in Adam's best interest that...