Opinion
No. COA09-1651
Filed 1 June 2010 This case not for publication
Appeal by respondent from judgment entered 17 September 2009 by Judge Sarah C. Seaton in Onslow County District Court. Heard in the Court of Appeals 26 April 2010.
Amy R. Jordan, for petitioner-appellee mother.
Betsy J. Wolfenden, for respondent-appellant father.
Onslow County No. 09 J 67.
Respondent-father ("respondent") appeals from the trial court's judgment terminating his parental rights to M.A.F. He challenges each of the grounds for termination. For the reasons stated herein, we reverse the trial court's judgment.
The record before us discloses that M.A.F. was born on 4 September 2005 in Marion County, Indiana to petitioner-mother, B.H., ("petitioner") and respondent. At the time of M.A.F.'s birth, petitioner and respondent were unmarried but living together. In August 2006, petitioner and respondent separated, and petitioner moved out of their shared apartment. Shortly thereafter, petitioner met J.H., and they were married in September of 2006. After her marriage, petitioner moved with M.A.F. to Albany, Georgia to live with J.H. Since J.H. was in military service, they lived on the military base in base housing. Respondent was provided with the address and telephone number for this residence.
Though not discussed in the trial court's findings of fact, both respondent and petitioner testified that they called each other and kept in communication for a period of time after petitioner's move to Georgia. In 2007, respondent traveled to Georgia to see M.A.F. He showed up unannounced at 3:00 a.m. and was not allowed to see M.A.F. at that time. Later in 2007, petitioner moved to a different house on base and changed her telephone number. None of this information was provided to respondent.
In July 2008, J.H. was relocated to Camp Lejeune, North Carolina; petitioner and M.A.F. moved to North Carolina with him. Respondent was not provided with their new address or telephone number, and he did not become aware of their re-location in North Carolina until October 2008. Though petitioner indicated that the telephone number for her residence in North Carolina was always listed, she did not provide the number or the address to the house because "[she] didn't want the Respondent to know of her location and did not inform the Respondent of her new address and phone number."
On 13 March 2009, petitioner filed a Verified Petition to Terminate Parental Rights ("Termination Petition") asking the trial court to issue an order terminating respondent's parental rights. Petitioner alleged two grounds for termination: (1) neglect (N.C.G.S. § 7B-1111(a)(1)) and (2) willful abandonment for at least six months immediately preceding the filing of the petition (N.C.G.S. § 7B-1111(a)(7)). Respondent was served with the Termination Petition on 26 March 2009 while he was incarcerated in Indiana. He filed a handwritten response on 16 April 2009. Respondent was advised of his right to a court appointed attorney, but he failed to complete and return an affidavit. Respondent also failed to respond to a discovery request which was served upon him on 21 April 2009.
The hearing on the Termination Petition was set for 22 July 2009. However, on 21 July 2009, respondent faxed to the trial court a request for a continuance. The trial court granted respondent a continuance and rescheduled the hearing for 19 August 2009. On 19 August 2009, respondent appeared in court and requested court appointed counsel. Counsel was appointed, and the case was continued to 3 September 2009.
After the 3 September 2009 hearing, the trial court determined that both grounds for termination of respondent's parental rights were proven by clear, cogent, and convincing evidence and that it was in M.A.F.'s best interest that respondent's parental rights be terminated. Respondent appeals.
Respondent's sole argument on appeal is that the trial court erred in its conclusion that the two grounds for termination were proven by clear, cogent, and convincing evidence. "Termination of parental rights is a two-step process. In the first phase of the termination hearing, the petitioner must show by clear, cogent and convincing evidence that a statutory ground to terminate exists." In re S.N., X.Z., 194 N.C. App. 142, 145-46, 669 S.E.2d 55, 58 (2008) (citations and internal quotation marks omitted), aff'd per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009). In our review of this phase of the termination proceeding, we must determine "whether the findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in turn, support the conclusions of law." Id. at 146, 669 S.E.2d at 58-59 (internal quotation marks omitted). "Once one or more of the grounds for termination are established, the trial court must proceed to the dispositional stage where the best interests of the child are considered." In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). This stage of the proceeding is reviewed for abuse of discretion. In re S.N., 194 N.C. App. at 146, 669 S.E.2d at 59.
Respondent first contends the trial court erred in finding that his parental rights should be terminated pursuant to N.C.G.S. § 7B-1111(a)(1). This statute provides that parental rights may be terminated upon a showing that the parent has neglected the child. N.C. Gen. Stat. § 7B-1111(a)(1) (2009). A child is deemed neglected "if the court finds the juvenile to be . . . a neglected juvenile within the meaning of G.S. 7B-101." Id. N.C.G.S. § 7B-101 defines a neglected juvenile, inter alia, as "[a] juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent . . . or [a juvenile] who has been abandoned." N.C. Gen. Stat. § 7B-101(15) (2009). This Court has found that "[n]eglect is more than a parent's failure to provide physical necessities and can include the total failure to provide love, support, affection, and personal contact." In re D.J.D., D.M.D., S.J.D., J.M.D., 171 N.C. App. 230, 240, 615 S.E.2d 26, 33 (2005) (internal quotation marks omitted). Moreover, abandonment as it relates to N.C.G.S. §§ 7B-1111(a)(1) and 7B-101(15) has been defined as
wilful neglect and refusal to perform the natural and legal obligations of parental care and support. It has been held that if a parent withholds his presence, his love, his care, the opportunity to display filial affection, and wilfully neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child.
In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 427 (2003) (internal quotation marks omitted). "In this context, [t]he word willful encompasses more than an intention to do a thing; there must also be purpose and deliberation." Bost v. Van Nortwick, 117 N.C. App. 1, 18, 449 S.E.2d 911, 921 (1994) (internal quotation marks omitted) (alteration in original), appeal dismissed, 340 N.C. 109, 458 S.E.2d 183 (1995). Additionally, "[i]n deciding whether a child is neglected for purposes of terminating parental rights, the dispositive question is the fitness of the parent to care for the child at the time of the termination proceeding." In re L.O.K., J.K.W., T.L.W., T.L.W., 174 N.C. App. 426, 435, 621 S.E.2d 236, 242 (2005) (internal quotation marks omitted). However, when
a child has not been in the custody of the parent for a significant period of time prior to the termination hearing . . . a trial court may find that grounds for termination exist upon a showing of a history of neglect by the parent and the probability of a repetition of neglect.
Id. (citation and internal quotation marks omitted).
In the present case, the trial court found the following relevant facts which have not been challenged:
14. That the Petitioner and Respondent resided together from September 2005 until August 2006 when the Petitioner moved out.
15. That the Petitioner subsequently married her current husband [J.H.] in September 2006 and relocated with the minor child to Albany, Georgia pursuant to his military duties.
16. That the Respondent was informed of the address and was provided a contact telephone number.
17. That in 2007, the Respondent traveled to Georgia and arrived unannounced at the child's residence at 3:00 a.m.. He was not allowed to see the child at that time of night.
. . . .
19. That the Petitioner was subsequently relocated to a new house aboard the military base at Albany, Georgia due to remodeling and also changed her phone number. Neither the new address nor a phone contact number were provided to the Respondent.
20. That the Petitioner, her spouse, and the minor child relocated to Camp Lejeune, North Carolina in July 2008. Neither the new address nor a phone contact number were provided to the Respondent.
21. That the Respondent became aware of the military unit of the Petitioner's spouse around October 2008. That despite his knowledge the Respondent again took no action to pursue any custody rights.
22. That although the Respondent is named on the child's birth certificate, at no time did he take any action to legitimate or otherwise formalize his custodial rights as relate to the minor child.
23. That the Respondent never spoke with an attorney about his rights even-though he believed that an attorney could assist him in locating the minor child.
24. That the Respondent has always known the address of and had the ability to contact the maternal grandmother. Further, the Respondent spoke with the maternal grandmother on a weekly basis.
25. That the Respondent did speak to a prosecutor on at least two separate occasions although there was no criminal issue.
26. That the Respondent never contacted a private investigator in an effort to find the address of the minor child.
27. That the Respondent knew of the step father's military unit in both Georgia and North Carolina but never contacted him or his command to seek access to the minor child.
28. That the minor child's presence in North Carolina would have inhibited custody and visitation by the Respondent.
28. That the Petitioner had a local listed phone number for 1/2 of 2008 and part of 2009.
29. That the Petitioner didn't want the Respondent to know of her location and did not inform the Respondent of her new address and phone numbers.
30. That the Respondent had the ability to access the child indirectly through the maternal grandparents who at all times remained in the same local area as the Respondent.
31. That the Respondent has had the ability to locate the minor child and pursue appropriate legal action to establish his custody/visitation rights but has failed to do so.
32. That the Respondent has not sent any cards, presents, or otherwise attempted to assert his parental rights with the minor child since September 2006.
Based on these unchallenged findings of fact, the trial court determined that respondent neglected M.A.F. by "fail[ing] to provide the proper care, supervision of the child and [by] willfully abandon[ing] his parental responsibilities." Accordingly, since M.A.F. has not been in the custody of respondent, we must determine whether the findings of fact support the conclusion that respondent has abandoned M.A.F. by refusing to meet his parental obligations and whether there is a likelihood that such behavior will continue in the future. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) ("Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.").
We conclude the findings do not support the trial court's conclusion that respondent neglected M.A.F. As discussed above, termination of a parent's parental rights on the ground that the parent has neglected his or her child may be terminated based on the parent's willful refusal or failure to show love, support, care, and affection. See In re D.J.D., 171 N.C. App. at 240, 615 S.E.2d at 33; see also In re Humphrey, 156 N.C. App. at 540, 577 S.E.2d at 427. Thus, in In re Humphrey, 156 N.C. App. 533, 577 S.E.2d 421 (2003), this Court found that the trial court did not err in terminating the mother's parental rights based on neglect. 156 N.C. App. at 540, 577 S.E.2d at 427. In that case, the trial court found that, despite having the opportunity and ability to see her son, the mother did not visit or request visitation in the five years proceeding the filing of the petition and sent him only one card during this time Id. at 534, 540, 577 S.E.2d at 423, 427. This Court concluded, based on these findings, "that [the mother] has wilfully refused to perform her obligations as a parent and has withheld her presence, love, care, and opportunity to display filial affection from the child." Id. at 540, 577 S.E.2d at 427.
Similarly, in In re M.D., N.D., ___ N.C. App. ___, ___, 682 S.E.2d 780 (2009), this Court concluded that there was sufficient evidence to find that the father had wilfully "withheld his presence, his love, his care, and the opportunity to display filial affections for the juvenile[s]." ___ N.C. App. at ___, 682 S.E.2d at 785 (internal quotation marks omitted) (alterations in original). In that case, there was evidence that the father failed to visit with his children despite having the ability to do so, that he did not inquire about his children's needs, and that he had not provided the children with any cards or gifts in years. Id. at ___, 682 S.E.2d at 785. Likewise, the trial court and this Court rejected the father's argument that the mother's efforts to prevent him from seeing his children was the sole reason for his inability to have a relationship with his children. Id. at ___, 682 S.E.2d at 785. In doing so, this Court acknowledged that the father at all times had a phone number where he could reach the children, and until she lost contact with him, the children's mother had consistently informed the father of their address. Id. at ___, 682 S.E.2d at 784-85.
The facts in the present case, however, are distinguishable from those discussed in the previous cases. The findings made by the trial court in the present case show that respondent attempted to see M.A.F. in 2007. Respondent likewise tried to speak with a prosecutor on two occasions concerning the matter, but the prosecutor was of no assistance as there was no criminal issue involved. Moreover, the findings show that respondent did not know where M.A.F. was living after petitioner's move in 2007, nor did he have a current telephone number by which to contact M.A.F. According to the trial court, this was apparently due to the fact that "Petitioner didn't want the Respondent to know of her location and did not inform the Respondent of her new address and phone numbers." The trial court additionally found that respondent knew where M.A.F.'s stepfather was stationed in both North Carolina and Georgia, but he "never contacted him or his command to seek access to [M.A.F.]" However, this finding is in contradiction to the trial court's finding that respondent did in fact attempt to visit M.A.F. in Georgia in 2007. Moreover, the fact that respondent had knowledge of M.A.F.'s location in Georgia and North Carolina does not necessarily give rise to a conclusion that he had the ability to locate her, especially in light of the fact that he had no address or telephone number for petitioner. Finally, though the trial court found that respondent "had the ability to access the child indirectly through the maternal grandparents," there is no indication from these findings that the maternal grandparents did in fact give respondent any information as to M.A.F.'s location or that because of his ability to contact the maternal grandparents respondent in fact had knowledge of M.A.F's current address or telephone number.
Conversely, the trial court acknowledged in its findings that respondent did attempt to see M.A.F. within the past three years, and that, unlike the fathers in the cases cited above, respondent's failure to see and provide care for M.A.F. was based on his lack of knowledge as to petitioner and M.A.F.'s address and telephone number. Thus, the findings do not support a conclusion that respondent has a "purpose and deliberation" to "escape [his] parental responsibility" or show that he is likely to abandon M.A.F. in the future. Bost, 117 N.C. App. at 18, 449 S.E.2d at 921 (internal quotation marks omitted). In light of the fact that respondent did not know M.A.F.'s address or have any way to contact her by telephone, neither his lack of contact with M.A.F. nor his limited attempts to see her support the conclusion that he wilfully withheld "his presence, his love, his care, [and] the opportunity to display filial affection." In re Humphrey, 156 N.C. App. at 540, 577 S.E.2d at 427; see also Bost, 117 N.C. App. at 19, 449 S.E.2d at 921 (finding that the trial court erred in terminating the father's parental rights based on abandonment even though he only visited the children a few times and made an offer to pay child support). Accordingly, the trial court erred in concluding that respondent's parental rights should be terminated pursuant to N.C.G.S. § 7B-1111(a)(1).
Respondent next argues that the trial court erred in also finding that his parental rights should be terminated pursuant to N.C.G.S. § 7B-1111(a)(7). N.C.G.S. § 7B-1111(a)(7) provides that a parent's rights may be terminated if "[t]he parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition." N.C. Gen. Stat. § 7B-1111(a)(7) (2009). As stated above, abandonment has been defined as "any wilful 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." Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962). "It has been held that if a parent withholds his presence, his love, his care, the opportunity to display filial affection, and wilfully neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child." Id.
The relevant time frame for termination under this statutory provision is six months, and thus only respondent's actions from October 2008 until March 2009 may be considered. However, many of the findings of fact made in support of this ground for termination are the same as those used to support the termination of respondent's parental rights pursuant to N.C.G.S. § 7B-1111(a)(1). Most significantly, during this time frame, respondent continued to have no knowledge of petitioner's address or phone number and, thus, had no way of contacting or visiting M.A.F. Though he discovered in October 2008 that petitioner was living in North Carolina, the trial court's findings do not indicate that he knew her exact address or had petitioner's telephone number. Therefore, our reasoning for concluding that the trial court erred in terminating respondent's parental rights pursuant to N.C.G.S. § 7B-1111(a)(1) applies equally to our analysis of the trial court's termination under N.C.G.S. § 7B-1111(a)(7), and we hold that the facts found by the trial court do not support a conclusion that respondent willfully abandoned M.A.F pursuant to N.C.G.S. § 7B-1111(a)(7). See In re T.C.B., 166 N.C. App. 482, 487, 602 S.E.2d 17, 20 (2004) (finding the trial court erred in terminating the father's parental rights on the ground of willful abandonment when the findings made by the trial court clearly showed that during the relevant six month period the father was prevented from having contact with his child due to an ongoing criminal proceeding against him).
Therefore, we reverse the trial court's determination that grounds existed to terminate respondent's parental rights pursuant to N.C.G.S. §§ 7B-1111(a)(1) and (7). Because the trial court did not find any other grounds upon which to base its decision to terminate respondent's parental rights, our holdings above are dispositive and we need not determine whether termination of respondent's parental rights was in M.A.F.'s best interest. Accordingly, we reverse the trial court's judgment terminating respondent's parental rights.
Reversed.
Judges JACKSON and BEASLEY concur.
Report per Rule 30(e).