In re S.Z.H.

• Decision Date: 03 May 2016
• Docket Number: No. COA15–1270.,COA15–1270.
• Citation: 785 S.E.2d 341
• Court: North Carolina Court of Appeals
• Parties: In the Matter of S.Z.H.

785 S.E.2d 341

In the Matter of S.Z.H.

No. COA15–1270.

Court of Appeals of North Carolina.

May 3, 2016.

Mark L. Hayes, Greensboro, for respondent-appellant.

No brief filed for petitioner-appellee.

STROUD

, Judge.

Respondent-father appeals from an order terminating his parental rights to S.Z.H. (“Sally”).¹ Respondent argues that the trial court erred in (1) concluding that he had willfully abandoned Sally under N.C. Gen.Stat. § 7B–1111(a)(7) (2015)

; and (2) concluding that terminating his parental rights was in Sally's best interests without making the requisite written findings of fact. We reverse the order because the evidence was insufficient to support the challenged findings of fact and because the remaining findings of fact cannot support a conclusion of law that respondent abandoned the minor child during the relevant time period.

I. Background

This case arises from a private termination of parental rights action filed by the child's mother against the child's legal and biological father. There were no allegations of neglect, abuse, or dependency under N.C. Gen.Stat. § 7B–1111

and no involvement by any Department of Social Services. On 1 February 2008, Sally was born to petitioner-mother and respondent-father, who were unmarried and living apart in North Carolina. For approximately one to two months, respondent helped care for Sally by watching her during the day while petitioner worked. After respondent's assistance became unreliable, petitioner made other childcare arrangements for Sally during the day. Later in 2008, after petitioner was involved in a car accident and lost access to reliable transportation, petitioner and Sally moved to Virginia to live with petitioner's uncle. In 2009, petitioner and Sally moved to Arizona to help care for petitioner's mother, who had been diagnosed with cancer.

In approximately March 2013, petitioner and Sally moved back to North Carolina, and petitioner arranged for respondent to visit with Sally for roughly two hours. In April 2013, respondent tried to send a $50.00 money order to petitioner. Respondent called Sally during the next several months. In January 2014, respondent asked petitioner if he could attend Sally's birthday party in February 2014, but petitioner responded that Sally's birthday party was “probably not the best place for [respondent] to see [Sally] after not seeing her” since March 2013. Respondent and Sally have not communicated since January 2014. Sometime while petitioner and Sally were in North Carolina, petitioner married a man.²

On 12 May 2014, petitioner filed a petition for termination of respondent's parental rights alleging that “for more than three (3) years the Respondent has not initiated contact with the minor child[.]”³ In approximately June 2014, petitioner, her husband, and Sally moved to Arizona. On 26 January 2015, the trial court held a hearing on the adjudication and disposition stages. At the conclusion of the hearing, Sally's guardian ad litem recommended that the trial court not terminate respondent's parental rights because petitioner and respondent's dispute “essentially boils down to a communication problem.” On 23 July 2015, the trial court entered an order concluding that respondent had willfully abandoned Sally under N.C. Gen.Stat. § 7B–1111(a)(7)

and that it was in Sally's best interests to terminate respondent's parental rights. On 25 August 2015, respondent gave untimely notice of appeal.

II. Appellate Jurisdiction

We first address whether we have jurisdiction over this appeal:

In civil actions, the notice of appeal must be filed “within thirty days after entry of the judgment if the party has been served with a copy of the judgment within the three day period” following entry of the judgment. N.C.R.App. P. 3(c)(1)

(2013); N.C. Gen.Stat. § 1A–1, Rule 58 (2013). The three day period excludes weekends and court holidays. N.C. Gen.Stat. § 1A–1, Rule 6(a) (2013).... Failure to file a timely notice of appeal is a jurisdictional flaw which requires dismissal.

Magazian v. Creagh, 234 N.C.App. 511, 512–13, 759 S.E.2d 130, 131 (2014)

. “[I]n the absence of jurisdiction, the appellate courts lack authority to consider whether the circumstances of a purported appeal justify application of [North Carolina Rule of Appellate Procedure] 2.” Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 198, 657 S.E.2d 361, 365 (2008). But “[North Carolina Rule of Appellate Procedure] 21(a)(1) gives an appellate court the authority to review the merits of an appeal by certiorari even if the party has failed to file notice of appeal in a timely manner.” Anderson v. Hollifield, 345 N.C. 480, 482, 480 S.E.2d 661, 663 (1997) ; see also N.C.R.App. P. 21(a)(1) (“The writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action[.]”).

Here, the trial court filed and entered the termination order on Thursday, 23 July 2015. Petitioner served respondent a copy of the order on Tuesday, 28 July 2015. Thus, respondent was served a copy of the termination order within the three-day period, since we exclude the intervening Saturday and Sunday from the three-day period. See Magazian, 234 N.C.App. at 512, 759 S.E.2d at 131

; N.C. Gen.Stat. § 1A–1, Rule 6(a), Rule 58 (2015). Accordingly, the last day on which respondent could have filed a timely notice of appeal was Monday, August 24, 2015. See

Magazian, 234 N.C.App. at 512, 759 S.E.2d at 131 ; N.C.R.App. P. 3.1(a); N.C. Gen.Stat. §§ 1A–1, Rule 6(a), Rule 58, 7B–1001(b) (2015). Because respondent did not file a notice of appeal until Tuesday, August 25, 2015, respondent's notice of appeal was untimely. Accordingly, we treat respondent's appeal as a petition for writ of certiorari and issue a writ of certiorari to review the merits of respondent's appeal. See

Anderson, 345 N.C. at 482, 480 S.E.2d at 663 ; N.C.R.App. P. 21(a)(1).

III. Termination Order

Respondent argues that the trial court erred in (1) concluding that he had abandoned Sally under N.C. Gen.Stat. § 7B–1111(a)(7)

; and (2) concluding that terminating his parental rights was in Sally's best interests without making the requisite written findings of fact.

A. Standard of Review

Termination of parental rights proceedings are conducted in two stages: adjudication and disposition. In the adjudication stage, the trial court must determine whether there exists one or more grounds for termination of parental rights under N.C. Gen.Stat. § 7B–1111(a)

. This Court reviews a trial court's conclusion that grounds exist to terminate parental rights to determine whether clear, cogent, and convincing evidence exists to support the court's findings of fact, and whether the findings of fact support the court's conclusions of law. If the trial court's findings of fact are supported by ample, competent evidence, they are binding on appeal, even though there may be evidence to the contrary. However, the trial court's conclusions of law are fully reviewable de novo by the appellate court.

If the trial court determines that at least one ground for termination exists, it then proceeds to the disposition stage where it must determine whether terminating the rights of the parent is in the best interest of the child, in accordance with N.C. Gen.Stat. § 7B–1110(a). The trial court's determination of the child's best interests is reviewed only for an abuse of discretion. Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.

In re A.B., ––– N.C.App. ––––, ––––, 768 S.E.2d 573, 575–76 (2015)

(citations, quotation marks, and brackets omitted).

B. Adjudication

i. Findings of Fact

We preliminarily note that in the termination order, the trial court conflated the separate stages of adjudication and disposition, which is most clearly seen in its conclusion of law that “[i]t is in the best interests of the minor child that the parental rights of the respondent-father ... be terminated and statutory grounds exist which justify this termination of the respondent's parental rights.” A court's decision to terminate parental rights based solely on the child's best interests violates a parent's constitutional right to custody of his child. See Adams v. Tessener, 354 N.C. 57, 62, 550 S.E.2d 499, 503 (2001)

(“The Due Process Clause ensures that the government cannot unconstitutionally infringe upon a parent's paramount right to custody solely to obtain a better result for the child.”). It is imperative that courts conduct these two inquiries separately although they may be conducted in the same hearing. See

In re Parker, 90 N.C.App. 423, 430, 368 S.E.2d 879, 884 (1988). We will thus focus our analysis on the trial court's findings of fact as to the grounds for termination of parental rights without consideration of the many findings of fact regarding petitioner's relocation to Arizona and the child's circumstances there.

Respondent argues that clear, cogent, and convincing evidence does not support the trial court's Finding of Fact 15 and the underlined portion of Finding of Fact 18:⁴

15. Since the petitioner's return to North Carolina in early 2013, the respondent has not sought any overnight visitation with the minor child nor has he actually exercised any overnight visitation. At all relevant times, the respondent had had the ability and means to maintain communication with the minor child and to arrange or schedule such visitation.

....

18. The Court finds as a matter of law that statutory grounds do exist to terminate the parental rights of the respondent in that the respondent, specifically for a period of at least six (6) months preceding the commencement of the instant action and generally since April of 2013, has willfully abandoned the minor child. Since April of 2013, the respondent has

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