In re W.H.F.

• Docket Number: COA22-947
• Decision Date: 01 August 2023
• Parties: In the Matter of: W.H.F.
• Court: North Carolina Court of Appeals

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In the Matter of: W.H.F.

No. COA22-947

Court of Appeals of North Carolina

August 1, 2023

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 7 June 2023.

Appeal by Respondent-Father from order entered 20 June 2022 by Judge Julius H. Corpening in New Hanover County District Court No 21-JT-213.

James W. Lea, III for the Petitioner-Appellee Mother.

Jason R. Page for the Respondent-Appellant Father.

STADING, JUDGE.

Respondent-Father ("Father") appeals from the trial court's order terminating his parental rights in his minor child pursuant to N.C. Gen. Stat. § 7B-1111. For the reasons set forth below, we affirm.

I. Background

In 2018, Petitioner-Mother ("Mother") became pregnant after she and Father had been dating for six months. The parties ended their relationship thirteen weeks into the pregnancy but remained in contact. Throughout the pregnancy Mother was living in Wilmington, North Carolina; Father was living in Raleigh, North Carolina. Mother gave birth to "Whitney^1] in a Wilmington hospital in March of 2019. Following Whitney's birth, Father visited with Whitney a handful of times, with his last visit being on 2 November 2019.

On 16 November 2021, Mother filed this petition to terminate Father's parental rights in Whitney based on abandonment under N.C. Gen. Stat. § 7B-1111(a)(7). The parties had not been in contact for well over a year when Mother filed this petition. Father filed his response to the petition, denying that grounds to terminate exist. On 10 January 2022, the trial court appointed attorney Mark Ihnat as Whitney's guardian ad litem ("GAL") and attorney advocate. The trial court heard this case on 13 and 17 June 2022. The court accepted testimony from Mother, Father, and other interested parties, including Ihnat. Additionally, Ihnat submitted a GAL report to the court, concluding that it was not in Whitney's best interest that Father's parental rights be terminated.

The trial court entered an order on 22 August 2022, terminating Father's parental rights in Whitney and finding that doing so would be in Whitney's best interest. Within the order, the trial court made a number of findings of facts, including:

11. From the date of birth until present, the minor child has resided exclusively with Petitioner.

12. After the minor child went home from the hospital, Respondent visited the minor child six times over nine months. These visits occurred at Petitioner's home in New Hanover County; The longest visit lasted no more than two hours. . . .

13. Respondent testified that during the minor child's first nine months he never contemplated visitations outside of Petitioner's home because he was an alcoholic and would not have wanted to put the minor child "in that position."

14. Respondent cancelled and missed visited on 27 May 2019 and 9 June 2019, and admitted that he lied and misled Petitioner about why he could not attend these visits with the minor child.

15. 2 November 2019 is the last date Respondent saw the minor child in person. ...

18. On 19 March 2020, Respondent sent a text message to Petitioner acknowledging the minor child's birthday....

19. The next time Respondent contacted Petitioner was 10 May 2020 ....

20. 10 May 2020 was the last date Respondent contacted Petitioner before the Petition was filed on 16 November 2021. There was no contact between Petitioner and Respondent between 10 May 2020 until after the Petition was filed.

21. For the entirety of the minor child's life, Respondent has had access to Petitioner's cell phone number and e-mail address. Respondent was able to contact Petitioner at the same cell phone number after the Petition was filed. Respondent knew Petitioner lived in Wilmington, North Carolina, although Petitioner did move to a new home Respondent had never visited.

... 26. After receiving a copy of the filed Petition, Respondent sent a letter apologizing to Petitioner for his absence and a Christmas gift for the minor child. Respondent followed up with a text message to Petitioner asking if the letter and gift were received. Petitioner did not respond. ...

32. Since at least age thirteen, Respondent has had some dependency on alcohol....

33. Respondent was using and dependent on alcohol during his romantic relationship with Petitioner and throughout the pregnancy[.]

...

35. On 14 October 2019, Respondent entered in-patient treatment for alcoholism, anxiety, and depression at a facility called Triangle Springs.... Respondent informed Petitioner that he had attended in-patient treatment at the end of his visit with the minor child in Petitioner's home on 2 November 2019[.]

36. Sometime after completing treatment at Triangle Springs, Respondent relapsed. He later became sober on 20 June 2020 and has maintained sobriety since that date[.]

37. Despite testifying that the minor child was his primary motivation for achieving sobriety . . . Respondent allowed more than sixteen months to pass without contacting Petitioner or the minor child between his sobriety date and the filing of the Petition in this action. ...

47. Since at least the end of August 2021, Respondent has cohabitated with [his girlfriend] at the residence she owns in Wake County, State of North Carolina. [His girlfriend's daughter] also lives in the home.

49. Since at least May of 2021, Respondent has built familial relationships with [his girlfriend] and her daughter and by August 2021 had integrated himself into their household. During that same window of time, Respondent had the ability to contact Petitioner and seek to build a relationship with the minor child but did not do so, nor did he file any legal action to establish a child custody arrangement or exercise his parental rights.

...

53. After Petitioner ended the romantic relationship with Respondent, Petitioner did respond to Respondent and his family in a polite and cordial manner. These communications were largely by text message although there were a few phone calls. Petitioner never initiated the contact.

54. In particular, Petitioner corresponded my text message with Respondent's stepmother[.] ...

57. [Respondent's stepmother] and other members of Respondent's family, including Respondent's mother, . . . who contacted Petitioner did so in their own capacity as relative by blood or marriage to the minor child, and did not do so on behalf of Respondent.

...

63. On 4 May 2021 Petitioner married [her husband] in a courthouse ceremony.... ... 72. Since the minor child's birth, Petitioner has been her primary-and at times sole-caregiver....

73. [Petitioner's husband] has taken on important parental and caregiver roles in the minor child's life . . . 74. [Petitioner's husband], through his relationship with Petitioner, became involved in the minor child's life before she could speak.... [Petitioner's husband] is the "daddy" figure in the minor child's life.

75. [Petitioner's husband] strongly desires to adopt the minor child.... ... 78. The bond between the minor child and her stepfather . . . is very strong.... 79. During his testimony, Respondent conceded that his bond with the minor child is nonexistent.

80. The minor child does not know that Respondent exists of that someone other than [Petitioner's husband] is her biological father. Her last in-person interactions with Respondent occurred at too young of an age for the minor child to recall. Petitioner has not discussed Respondent with the minor child due to Petitioner's concerns the information will confuse the minor child and have a negative effect on her intellectual and emotional development.

The court concluded that, under N.C. G.S. § 7B-1111(a)(7), Father had willfully abandoned Whitney for at least six consecutive months immediately preceding the filing of this petition. Father entered his notice of appeal on 25 August 2022.

II. Jurisdiction

This Court has jurisdiction over Father's appeal from the order terminating his parental rights under N.C. Gen. Stat. §§ 7A-27(b)(2) and 7B-1001(a)(7) (2021).

III. Analysis

Father raises the following issues on appeal: (1) whether the trial court erred in concluding that Father had willfully abandoned Whitney, (2) whether the trial court abused its discretion in terminating Father's parental rights, and (3) whether the trial court's judgment must be reversed because the attorney appointed as the GAL served only as the GAL and not as an attorney advocate.

A. Willful Abandonment

Father argues that the trial court erred in concluding that he willfully abandoned Whitney because Father's alcoholism, depression, and limitations on access made his actions not willful. "At the adjudicatory stage of a termination of parental rights hearing, the burden is on the petitioner to prove by clear, cogent, and convincing evidence that at least one ground for termination exists." In re O.J.R., 239 N.C.App. 329, 332, 769 S.E.2d 631, 634 (2015) (citations omitted); see also N.C. Gen. Stat. § 7B-1109(f) (2021). This Court reviews a trial court's order terminating parental rights "to determine whether the findings are supported by clear, cogent and convincing evidence and that the findings support the conclusions of law." In re T.M.L., 377 N.C. 369, 371, 856 S.E.2d 785, 789 (2021) (citations omitted). The trial court's conclusions of law are subject to de novo review. Id. "Any unchallenged findings are deemed supported by competent evidence and are binding on appeal." In re Z.G.J., 378 N.C. 500, 508-09, 862 S.E.2d 180, 187 (2021) (internal quotation marks and citation omitted).

A trial court may...