In re TCB

• Decision Date: 21 September 2004
• Docket Number: No. COA03-1591.,COA03-1591.
• Citation: 602 S.E.2d 17,166 NC App. 482
• Court: North Carolina Court of Appeals
• Parties: In re T.C.B.

602 S.E.2d 17

166 NC App. 482

In re T.C.B.

No. COA03-1591.

Court of Appeals of North Carolina.

September 21, 2004.

No brief filed for petitioner-appellee.

Charlotte Gail Blake, Jefferson, for respondent-appellant.

BRYANT, Judge.

P.N.S. (respondent-father) appeals a judgment adjudicating that grounds exist to terminate his parental rights as to his natural daughter T.C.B.

L.B. (the mother) and respondent are the natural parents of T.C.B., born 21 September 1995. Both the mother and the respondent were 14 years of age at the time T.C.B. was conceived. On 2 February 2002, the mother filed a petition to terminate the parental rights of respondent on the ground that he willfully abandoned T.C.B. as defined by N.C. Gen.Stat. § 7B-1111(a)(7). Respondent filed an answer requesting that his parental rights not be terminated. A guardian ad litem was appointed to represent the interest of the minor child.

This matter came for hearing at the 10 June 2003 session of Buncombe County District Court with the Honorable Rebecca B. Knight presiding. The district court entered an order finding that grounds existed to terminate the parental rights of respondent because he willfully abandoned the minor child for six months preceding the filing of the petition to terminate his parental rights.

Respondent gave timely notice of appeal.

Right to appeal

N.C. Gen.Stat. § 7B-1113, provides that any parent who is a party to a termination of parental rights (TPR) "proceeding under this Article may appeal from an adjudication or any order of disposition to the Court of Appeals, provided that notice of appeal is given in writing within 10 days after entry of the order." N.C.G.S. § 7B-1113 (2003) (emphasis added). In the case sub judice, a final disposition was not entered in this case as evidenced by the district court's decree:

1. Grounds exist for termination of parental rights of the Respondent, [P.N.S.], to the minor child, [T.C.B.].

2. The court will withhold entry of a judgment terminating parental rights of [P.N.S.] until such time as the Petitioner files with the Clerk of Superior Court a petition to adopt by [the mother's boyfriend] and a consent to adopt signed by the Petitioner. Upon presentation to this court of the petition to adopt filed by [the mother's boyfriend] and the consent of the Petitioner to the adoption of the minor child by [the mother's boyfriend], the court will enter a final order terminating the parental rights of the Respondent, [P.N.S.].

3. That if a final order terminating parental rights of the Respondent, [P.N.S.], to the minor child [T.C.B.], is not entered prior to November 1, 2003, then the matter may be noticed in for further hearing on the Respondent's request for visitation. The Respondent's obligation to pay child support on behalf of [T.C.B.] shall continue unless the court grants an order terminating his parental rights.

However, pursuant to N.C. Gen.Stat. § 7B-1113, respondent has a right to appeal from the adjudication order. See N.C.G.S. § 7B-1113 (any parent who is a party to a termination of parental rights "proceeding under this Article may appeal from an adjudication or any order of disposition to the Court of Appeals").

Standard of Review

There are two stages involving a petition to terminate parental rights: adjudication and disposition. At the adjudication stage, the petitioner has the burden of proving by clear, cogent and convincing evidence that at least one statutory ground for termination exists. In re McMillon, 143 N.C.App. 402, 408, 546 S.E.2d 169, 173-74 (2001); see N.C.G.S. § 7B-1109(f) (2003) (requiring findings of fact to be based on clear, cogent, and convincing evidence). A finding of one statutory ground is sufficient to support the termination of parental rights. In re Pierce, 67 N.C.App. 257, 261, 312 S.E.2d 900, 903 (1984). Upon so finding, the district court proceeds to the disposition stage, where it determines whether termination of parental rights is in the best interest of the child. McMillon, 143 N.C.App. at 408, 546 S.E.2d at 174. On appeal, this Court reviews whether the district court's findings of fact are supported by clear, cogent and convincing evidence, and whether those findings support the district court's conclusions of law. Id. at 408, 546 S.E.2d at 174. If the decision is supported by such evidence, the district court's findings are binding on appeal, even if there is evidence to the contrary. In re Williamson, 91 N.C.App. 668, 674, 373 S.E.2d 317, 320 (1988).

On appeal, respondent argues that the district court erred in adjudicating that grounds existed to terminate his parental rights based on the allegation of willful abandonment. We agree and hold that the findings do not support the determination of willful abandonment and reverse the adjudication decision.

N.C. Gen.Stat. § 7B-1113, defines willful abandonment as when: "[t]he parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion." N.C.G.S. § 7B-1113 (2003). "Abandonment imports any wil[l]ful or intentional conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child." In re Apa, 59 N.C.App. 322, 324, 296 S.E.2d 811, 813 (1982). In this context, "the word `willful' encompasses more than an intention to do a thing; there must also be purpose and deliberation." In re Adoption of Searle, 82 N.C.App. 273, 275, 346 S.E.2d 511, 514 (1986). "Whether a biological parent has a willful intent to abandon his child is a question of fact to be determined from the evidence." Id. at 276, 346 S.E.2d at 514.

Here, the district court found willful abandonment based on the reasons that

[t]he Respondent father has not had any visits with the child since August 1999 and has not requested any visits since the mother told him in August 1999 that he could not see the child for the weekend requested. The Respondent never exercised regular and consistent visitation with the child since her birth. The Respondent has never had the child with him for an overnight visit since her birth.... The Respondent father has not sent the child letters, cards, or gifts on a regular basis. The criminal charges against the father limited Respondent's ability to be involved in parenting of his child but there were actions he could have taken that could have kept him more involved with his child.... The actions of the Respondent since the birth of the child constitute ... abandonment of the child.

Analyzing the above, we are bound to determine whether the findings of fact support this conclusion, focusing on respondent's actions as they transpired during the relevant six month period proceeding the filing of the TPR petition (September 2001) and the actual filing of the TPR petition (February 2002). We hold the findings of fact do not support this conclusion. Specifically, significant portions of findings of fact 13, 14, and 20 reveal:

13.... [Respondent] did have one visit with the minor child on August 15, 1999, when he took her to the Sourwood Festival. Later

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