In re T.A.C.
| Docket Number | COA22-857 |
| Decision Date | 05 July 2023 |
| Parties | IN THE MATTER OF: T.A.C. and I.M.C. |
| Court | North Carolina Court of Appeals |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Heard in the Court of Appeals 23 May 2023.
Appeal by Respondent-Father from Order entered 14 July 2022 by Judge David Von Byrd in Ashe County Nos. 21-JT-21, 21-JT-22 District Court.
Anne C. Wright for Petitioner-Appellee Mother.
Rebekah W. Davis for Respondent-Appellant Father.
John C. Johnston for Guardian Ad Litem no brief filed.
Appellant-Father ("Father") appeals from the trial court's order terminating his parental rights to his minor children, T.A.C and I.M.C. The trial court's termination order, entered on 14 July 2022 in a privately instituted termination of parental rights action, was decided on grounds of abuse neglect, and willful abandonment. Father contends the trial court's findings of fact did not demonstrate he neglected or abused his children at the time of the termination hearing. He further asserts he did not willfully abandon his children because he was never afforded the opportunity or able to maintain a relationship with them. Finally, Father argues that the trial court abused its discretion in its best interest determination when it failed to consider that the man who sought to adopt T.A.C. and I.M.C., did not pursue a relationship with his own biological child. After careful review of the record, we reverse the trial court's order terminating Father's parental rights.
Father and Appellee-Mother ("Mother") are the biological parents of T.A.C. (born in August of 2014) and I.M.C. (born in October of 2015).[1] The parents married in August of 2012 and divorced in October of 2020. Mother and Father have a history involving domestic violence with Father having a criminal record that identified him as the perpetrator. Father has been incarcerated since April 2016 for domestic violence, among other charges. Consequently, the children have resided primarily in Mother's care since their births.
On 22 November 2017, Father entered into a consent order for a Domestic Violence Protection Order ("DVPO") based on communications he directed toward Mother. One of the conditions in the DVPO, among others, was that Father was to have no contact or communication directly or indirectly (including by telephone, inperson, email, fax, pager, or gift-giving) with Mother, the children, or Mother's parents. The DVPO remained in effect until 22 November 2018.
Mother filed on 21 April 2021 a petition to terminate Father's parental rights to the children in which she alleged abuse, neglect, failure to pay child support, and willful abandonment of the children for more than three years. Father was served with the petition and summons on 6 May 2021. On 30 June 2021 and 30 November 2021, Father wrote two letters to the court in response to the petition for termination of his parental rights. In both letters, Father made the court aware that he was contesting termination of his parental rights.
On 23 February 2022, Father's trial counsel filed a motion to dismiss due to the adjudication hearing not being held within 90 days from the filing of the petition as required by statute. Five days later, on 28 February 2022, the trial court held a pretrial hearing and acknowledged Father's handwritten letters filed with the court as "responsive pleadings" to Mother's petition for termination of his parental rights. The trial court also denied Father's motion to dismiss at that pretrial hearing.
In the following month, on 25 March 2022, the trial court held an adjudication hearing and heard evidence regarding Mother's petition. Mother and Father were both present (Father was present virtually) and testified at the hearing. Mother testified that the last time Father contacted her was five or six years prior to the termination hearing. Mother also acknowledged her contact information had changed since the last time Father contacted her such that Father no longer had current contact information for the children. On cross examination, Mother testified that Father had sent her letters while he was incarcerated but did not specify a timeframe. Mother also testified she believed Father contacted the Department of Social Services ("DSS") regarding the children since he has been in prison. Mother stated she has not received any money or gifts for the children from Father since his incarceration.
After the termination hearing, the trial court entered an order on 14 July 2022 terminating Father's parental rights to the children on grounds of abuse and neglect, and willful abandonment. The trial court concluded as a matter of law, it was in the children's best interest that Father's parental rights should be terminated, and Father timely appealed.
The Juvenile Code provides 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, 839 S.E.2d 792, 796-97 (2020) (citation omitted). "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 section 7B-1111(a) of the General Statutes." In re A.U.D., 373 N.C. 3, 5-6, 832 S.E.2d 698, 700 (2019) (internal quotations and citations omitted). This Court reviews the "trial court's adjudication of grounds to terminate parental rights to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law." In re I.J.W., 378 N.C. 17, 21, 859 S.E.2d 148, 151 (2021) (internal quotations and citations omitted).
The trial court's findings of fact are conclusive on appeal when supported by competent evidence, even if that evidence could sustain contrary findings. In re L.T.R., 181 N.C.App. 376, 381, 639 S.E.2d 122, 125 (2007) (internal quotations and citations omitted). While the trial court considers whether there is clear, cogent, and convincing evidence to support the findings of fact, this Court may not reweigh the evidence in making the determination of whether the findings are supported. In re I.K., 377 N.C. 417, 426, 858 S.E.2d 607, 613 (2021). In termination of parental rights cases, a trial court's conclusions of law are reviewed de novo. In re S.N., 194 N.C.App. 142, 146, 669 S.E.2d 55, 59 (2008). "The trial court's assessment of a juvenile's best interest at the dispositional stage is reviewed only for abuse of discretion." In re Z.L.W., 372 N.C. 432, 435, 831 S.E.2d 62, 64 (2019).
On appeal, Father challenges the trial court's findings and conclusions that grounds existed for termination of his parental rights under North Carolina General Statutes § 7B-1111(a)(7) for willful abandonment and § 7B-1111(a)(1) for abuse and neglect. First, Father contends the trial court erred when it concluded grounds existed to terminate his parental rights based upon evidence that he willfully abandoned the children-specifically, Father argues he was never afforded the opportunity to maintain a relationship with the children. We agree.
Father first argues many of the trial court's findings were in error because they were not supported by the evidence. Specifically, Father asserts the trial court's findings do not support a finding for willfulness and the findings did not establish the correct dates for his incarceration. Father challenges the following relevant findings:
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