Opinion
No. COA18-1221
11-19-2019
In the MATTER OF: B.A.S.
Daly Family Law Firm, by Meg Stacy, and Jones Childers Donaldson Webb, PLLC, by Richard M. Webb, for petitioner-appellee mother. Mark L. Hayes, for respondent-appellant father.
Daly Family Law Firm, by Meg Stacy, and Jones Childers Donaldson Webb, PLLC, by Richard M. Webb, for petitioner-appellee mother.
Mark L. Hayes, for respondent-appellant father.
McGEE, Chief Judge.
Respondent appeals from an order terminating his parental rights. This case is before this Court for a second time. A procedural and factual background can be found in our prior opinion in this case, In re B.A.S. , ––– N.C. App. ––––, 814 S.E.2d 626, 2018 WL 2642843 at *1 (2018) (unpublished). Respondent argues in this second appeal that the trial court erred by: (1) concluding that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(7) to terminate his parental rights; and (2) failing to take additional evidence on remand before entering a new dispositional order. We affirm.
Respondent is the father of the juvenile B.A.S. ("Brett") and Petitioner is Brett’s mother. Respondent and Petitioner never married, and Brett was born out of wedlock. Brett has lived with Petitioner since his birth. Petitioner has maintained the same employment for four years and has married another person, with whom she has had two biological children. Petitioner’s husband also maintains stable full-time employment. Petitioner’s husband "desires to adopt [Brett] and [Brett] considers him as his father and calls him ‘daddy.’ " The Guardian ad Litem "found the home to be very appropriate with many age-appropriate toys and plenty of food," and that "the children appeared to [be] well-cared for and happy." Petitioner filed a petition to terminate Respondent’s parental rights on 12 April 2017. The trial court entered an order terminating Respondent’s parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(5) and (7) on 7 September 2017. Respondent appealed.
A pseudonym is used to protect the identity of the juvenile and for ease of reading. See N.C. R. App. P. 3.1(b) (2017).
In Respondent’s prior appeal, he argued that the trial court erred by concluding that grounds existed to terminate his parental rights. This Court first held that the trial court’s conclusion that grounds existed to terminate Respondent’s parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(5) was unsupported. Regarding the trial court’s conclusion that grounds existed to terminate Respondent’s parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(7), this Court stated:
The trial court found that respondent: (1) had not visited with Brett since 2013; (2) provided only twenty dollars in financial support for Brett; (3) had not provided cards or gifts for Brett in several years; (4) made only sporadic contact with petitioner; and (5) failed to bring forth any sort of legal action seeking visitation or custody. However, even assuming arguendo that there is an evidentiary basis for these findings, the trial court’s order wholly fails to address the willfulness of respondent’s conduct, a required element under N.C. Gen. Stat. § 7B-1111(a)(7)... Consequently, we conclude that the trial court failed to enter adequate findings of fact to demonstrate that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(7) to terminate respondent’s parental rights.
B.A.S. , ––– N.C. App. at ––––, 814 S.E.2d at 626, 2018 WL 2642843 at *4. Accordingly, we vacated the trial court’s termination of parental rights order and remanded to the trial court for further findings and conclusions to support the grounds upon which it relied to terminate Respondent’s parental rights. We left to the discretion of the trial court whether to hear additional evidence on remand. Id. at ––––, 814 S.E.2d at 626, 2018 WL 2642843 at *5.
Petitioner filed a Notice of Hearing on 11 June 2018 following remand from this Court to the trial court. Prior to the hearing on remand, Respondent filed a motion on 26 June 2018 asking the trial court to hear additional evidence. In support of his motion, Respondent attached an affidavit in which he stated that: (1) he had set aside money to pay support for Brett, even though Petitioner would not accept the financial support; (2) he had stable housing and employment; (3) he had not obtained any criminal charges since 2014; and (4) he was "currently engaged." Petitioner filed a motion to dismiss Respondent’s motion, arguing that Respondent’s "new evidence" was merely "additional evidence that the trial court may, in its discretion, hear to support the original termination Order," as "none of the items" in Respondent’s affidavit were "relevant to supporting the findings of fact and conclusions of law of the original termination Order." The trial court denied Respondent’s motion and entered an amended adjudication and disposition order terminating Respondent’s parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(7) on 24 July 2018. Respondent appeals.
Respondent first argues that the trial court again erred by concluding that grounds existed to terminate his parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(7). Specifically, Respondent contends that the trial court’s findings of fact, including the new findings of fact made on remand, still do not support its conclusion that he abandoned Brett. We disagree.
Under N.C. Gen. Stat. § 7B-1111(a)(7), the trial court may terminate parental rights where "[t]he parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion[.]" "Abandonment implies conduct on the part of the parent which manifests a willful determination to forego all parental duties and relinquish all parental claims to the child. 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) (internal quotations and citations omitted). Factors to be considered include a parent’s financial support for a child and "emotional contributions," such as "respondent’s display of love, care and affection for his children." In re McLemore , 139 N.C. App. 426, 429, 533 S.E.2d 508, 510 (2000) (citations omitted). "Although the trial court must examine the relevant six-month period in determining whether respondent abandoned the juvenile, the trial court may consider respondent’s conduct outside this window in evaluating respondent’s credibility and intentions." In re C.J.H. , 240 N.C. App. 489, 503, 772 S.E.2d 82, 91 (2015).
In this case, because Petitioner filed her petition to terminate Respondent’s parental rights on 12 April 2017, the relevant time period for considering whether Respondent abandoned Brett is 12 October 2016 to 12 April 2017. The trial court found as fact at the first termination hearing, and repeated its findings in its order on remand, having reviewed the tape recording of the hearing on 7 August 2017, that: (1) since Brett’s birth, Petitioner has had the same phone number and has worked at the same location for the last four years; (2) Respondent initially requested and received visitation with Brett, but Petitioner began refusing Respondent’s requests due to their sporadic nature and due to the fact that Respondent appeared for visitation "under the influence"; (3) Respondent has not visited with Brett since 2013; (4) the only financial support Respondent has provided for Brett is twenty dollars; (5) Respondent has provided no cards or gifts since Brett’s second birthday; (6) there has been occasional contact between Respondent and Petitioner, usually by text message or Facebook Messenger; (7) Respondent last called Petitioner to obtain Brett’s social security number; (8) Respondent has for six years failed to bring any sort of legal action for visitation with Brett and has never made any serious attempt to be a part of Brett’s life; and (9) records of text messages and Facebook records demonstrate that Respondent has at times asked for visits or inquired about Brett, but has also gone months or years without contact. The trial court also found as fact:
17. That Respondent father introduced phone records to support his claims of numerous contacts to see the juvenile. The court reviewed those records and saw that there were numerous contacts between 2011 and 2012. There was one contact in 2013, a couple of contacts in 2014, no contact in 2015, and some contact has been made since April 2016, but that contact appears to be related to the issues of Petitioner’s requests for Respondent’s consent to adoption by her current husband[.]
On remand, the trial court made these additional findings of fact:
20. That as to the willful abandonment of the juvenile pursuant to N.C.G.S. § 7B-1111(a)(7), the Court finds the following additional facts:
a. That the Respondent has not physically visited with the juvenile since he was one and a half years old. ...
b. That the Respondent says he purchased gifts for the juvenile but was not allowed to give them to the juvenile. ... At no time has the Respondent shown through his exhibits that he had gifts for the juvenile. ...
c. That the Respondent’s exhibit shows there was no contact from him to the Petitioner from November 2, 2014 until February, 2016. The messages between February, 2016, and May, 2016, mention nothing about gifts that the Respondent had for the juvenile. There is no request by the Respondent to see the juvenile from 2014 until he sent numerous messages in the Spring of 2016. For the first time, he asked if the juvenile needed anything on May 28, 2016, but then Respondent went another six (6) months before additional contacts, which center on his decision to relinquish [his] parental rights as long as his parents can maintain a relationship with the juvenile. Again, he offered no clothes, shoes, money, cards, gifts, or other support – either monetary or emotional.
d. That the Respondent has never attended any of the child’s school events or inquired about them.
e. That although the Petitioner did block the Respondent from Facebook for some period of time before 2016, the Respondent still had the ability to call or text her at the telephone number she has had for over ten (10) years, yet he went for over a year at a time with not any contact to inquire about the juvenile’s wellbeing, much less to offer [any] support.
f. There was no impediment to the Respondent to send money, gifts, cards, or other items through the postal service to the Petitioner’s long-term residence, but he sent nothing to the juvenile.
g. That the Respondent says he asked "millions" of times to see the juvenile, yet this claim is not born[e] out by the Respondent’s own exhibits. Even the messages sent in the six (6) months prior to the filing of the Petition do not ask for visits, but merely inquire about how the juvenile is doing.
h. That the Respondent said he had a criminal record from years ago, so he was not incarcerated during the six (6) months preceding the filing of the Petition and therefore incapable of physically visiting with the child. The Respondent testified that he was employed, so he could have provided financial support for the child.
21. The Court finds credible evidence has shown that the Respondent has withheld his presence, his love, his care, the opportunity to display his filial affection, and willfully neglected to lend his support and maintenance during the six (6) months preceding the filing of the Petition, and as such has relinquished all of his parental claims and abandoned the juvenile. The Respondent’s actions, or lack thereof, evinces a settled purpose to forego all parental duties and relinquish all potential claims to the juvenile.
We note that, while Petitioner stated in her brief that Respondent "has never signed an affidavit acknowledging paternity," the trial court, in finding of fact 22, found "there was no evidence to show that an Affidavit of Parentage had or had not been filed with the North Carolina Department of Health and Human Services," and it recognized it could not rely on the absence of such an affidavit as grounds because it did "not allow[ ] additional evidence to be presented[.]"
Findings of fact not challenged by Respondent are deemed supported by competent evidence and are binding on appeal. Koufman v. Koufman , 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Moreover, we review only those findings necessary to support the trial court’s determination that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(7) to terminate Respondent’s parental rights. See In re T.M. , 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006) (erroneous findings that are unnecessary to support adjudication of neglect do not constitute reversible error).
Respondent challenges findings of fact 17, 20, and 21. In finding of fact 17, the trial court found that Respondent’s contact with Petitioner after 2016 was solely limited to Petitioner’s request that Respondent relinquish his parental rights. Respondent argues, however, that the evidence demonstrates that he often inquired into the welfare of his child and "made emotional pleas to connect with his son." We agree with Respondent that this finding of fact does not accurately represent the evidence presented at the termination hearing. The record demonstrates that Respondent’s contact with Petitioner in 2016 went beyond that stated by the trial court. Respondent sent several text messages in which he inquired into Brett’s wellbeing, asked to hear his voice, and asked if he needed anything for school. In one text, sent just prior to the filing of the petition to terminate his parental rights, Respondent texted Petitioner about her request that he relinquish his parental rights, expressed his anger and confusion about the request, and asked for pictures of Brett for himself and his parents. Thus, the trial court’s finding of fact 17 is not supported by the evidence and does not reflect the evidence presented at the termination hearing.
Respondent next challenges finding of fact 20(a) and disputes that he was under the influence of drugs during his last visit with the juvenile. However, Petitioner testified at the hearing that after Brett was born, Respondent would come over to her house to see him "under the influence of drugs multiple times[.]" Although Respondent is correct that this occurred outside of the statutory period, the trial court’s finding of fact is nonetheless supported by competent evidence in the record.
The bulk of Respondent’s challenges to sub-findings of finding of fact 20 concern whether he had the ability to contact Petitioner and whether Petitioner thwarted his efforts at contact with Petitioner and Brett. We find sufficient evidence in the record, however, to support the trial court’s findings of fact 20(c) and (e), which specifically address this point.
First, we note that Petitioner testified at the termination hearing that: (1) Respondent had her phone number; and (2) she had the same number since she was in fourth grade, and it had never changed. Although it is apparent from the record that Petitioner blocked some contact with Respondent, as she admitted as such and the trial court so found, she did not block all contact. Respondent’s own testimony was that Petitioner only blocked him "periodically." Moreover, and again as found by the trial court, Petitioner mostly blocked Respondent on Facebook. This is further borne out by their text communications, in which Petitioner informed Respondent that she blocked Respondent on Facebook because she did not want him posting her photos of Brett as if they were his photos, and she requested that he remove the photos from his Facebook page.
Second, Respondent claims that during the statutory period, Petitioner not only blocked him on Facebook, but blocked his phone number, and thus he was completely prevented from contacting her. Petitioner testified, however, that Respondent could contact her by phone, and she could not recall blocking his phone number. Thus, there is a conflict in the evidence regarding Respondent’s ability to contact Petitioner during the statutory period. The trial court, which was in a better position than this Court to evaluate the credibility of the respective witnesses, determined that Petitioner’s evidence was entitled to more weight than Respondent’s evidence. See In re Whisnant , 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984) ("[W]hen a trial judge sits as ‘both judge and juror,’ as he or she does in a non-jury proceeding, it is that judge’s duty to weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom." (citation omitted)). Accordingly, the trial court’s findings of fact 20(c) and (e), which are supported by competent evidence, are binding on appeal. Notably, Respondent did not challenge finding of fact 19, which is therefore binding on appeal, in which the trial court finds "[t]hat the text message and Facebook records demonstrate that [Respondent] has, at times, asked for visits or asked about [Brett] and then goes months and even a year at times without contact."
Respondent further challenges findings of fact 20(a), (b), (d), and (g) concerning his failures to visit or request visits with the juvenile, attend school events, or provide him with gifts or any support. We hold that these findings were supported by competent evidence in the record. Petitioner testified that the last time Respondent saw Brett was in February 2013 when Brett was a year and a half old, and the last time Respondent sent Brett a gift or card was for his second birthday. Petitioner further testified that Respondent only sporadically called to check on Brett, and it had been over a year since his last call, and that the last time Respondent actually requested to see Brett was in 2013. Petitioner additionally testified that Respondent never attended any of Brett’s school functions. Thus, the trial court’s findings are supported by competent evidence in the record.
Respondent challenges the trial court’s finding of fact 20(f) that he could have sent gifts to Brett through the postal service at Petitioner’s "long-term residence." We do note, however, that Respondent was prevented from doing so because Petitioner has lived at three locations, and Petitioner failed to update Respondent with her new address. Thus, we hold the trial court’s finding of fact that there was "no impediment" to Respondent sending gifts and money to Brett is not supported by the evidence.
The real crux of Respondent’s argument on appeal concerns finding of fact number 21. Respondent asserts that while he did not visit or support Brett, or send him gifts, he did not willfully abandon Brett because his efforts in showing interest in Brett’s welfare were blocked by Petitioner, and he lacked the ability and opportunity to do so because of Petitioner. We disagree.
Here, Respondent’s attempts at contact with Brett appear to be sporadic and mostly limited to: (1) general inquiries into his welfare and requests for pictures; and (2) a request for his social security number so that he could make him a beneficiary on his life insurance policy. "It has been held that if a parent withholds his presence, his love, his care, the opportunity to display filial affection, and wi[l]lfully neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child." Pratt v. Bishop , 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962) (citation omitted). To constitute abandonment, "it is not necessary that a parent absent himself continuously from the child for the specified six months, nor even that he cease to feel any concern for [his] interest ." Id. at 503, 126 S.E.2d at 609 (emphasis added). "A delinquent parent may not dissipate at will the legal effects of his abandonment by merely expressing a desire for the return of the abandoned juvenile." In re C.J.H. , 240 N.C. App. 489, 504, 772 S.E.2d 82, 92 (2015) (citing 257 N.C. at 502, 126 S.E.2d at 609 ). Thus, Respondent’s mere inquiries into Brett’s welfare fall far short of providing the presence, love, care, or the opportunity to display filial affection necessary to undermine a conclusion of willful abandonment.
For example, in In re K.B. , an unpublished opinion, this Court held a respondent willfully abandoned her child even when she did visit the child once during the relevant statutory period, when she did not otherwise make or request visits, send gifts or cards, or ask about the welfare of the juvenile. In re K.B. , 177 N.C. App. 810, 630 S.E.2d 256, 2006 WL 1529667 at *4 (2006) (unpublished).
Second, Respondent’s act of making Brett a beneficiary on his life insurance policy provided Brett with no actual, tangible means of support during the statutory period, but only provided potential benefits in the event of Respondent’s death. See, e.g., id. at 504, 772 S.E.2d at 92 (affirming finding of abandonment even where respondent made "last-minute child support payments and requests for visitation" during the relevant six-month statutory period where "respondent did not visit the juvenile, failed to pay child support in a timely and consistent manner, and failed to make a good faith effort to maintain or reestablish a relationship with the juvenile"); In re Adoption of Searle , 82 N.C. App. 273, 276, 346 S.E.2d 511, 514 (1986) (holding that respondent’s $500 child support payment during the relevant six-month period did not preclude a finding of willful abandonment); Pratt , 257 N.C. at 503, 126 S.E.2d at 609 (holding that respondent’s visit with the juvenile during the relevant six-month period did not preclude a finding of willful abandonment). Accordingly, we conclude that this evidence was insufficient to undermine the trial court’s finding of willfulness.
This Court has held that a parent "will not be excused from showing interest in [a] child’s welfare by whatever means available[,]" even if "his options for showing affection [were] greatly limited." See In re R.R. , 180 N.C. App. 628, 634, 638 S.E.2d 502, 506 (2006) (citation and quotation marks omitted) (rejecting respondent-father’s argument that "he did not willfully abandon the child because he was not given the opportunity to participate in the child’s life"). For instance, this Court has held incarceration was insufficient to avoid a finding of willful abandonment, although it greatly limits the parent’s ability to show affection. In re D.J.D. , 171 N.C. App. 230, 240, 615 S.E.2d 26, 33 (2005). It is apparent from the record that Petitioner made it difficult for Respondent to contact her and have a relationship with Brett. Petitioner periodically blocked contact between herself and Respondent, and would not allow Respondent to speak with Brett. Nevertheless, we note that Respondent was not under any type of order preventing him from contacting Petitioner, yet his efforts at doing so were sporadic at best. See In re I.R.L. , ––– N.C. App. ––––, ––––, 823 S.E.2d 902, 905 (2019) (holding trial court erred in failing to make specific finding of "willfulness" in termination proceeding where respondent-father was subject to domestic violence protective order prohibiting him from contacting mother during relevant period). Moreover, even where there are significant potential consequences for contacting the custodial parent, we have nevertheless held the respondent willfully abandoned the child when he fails to do so. See In re Graham , 63 N.C. App. 146, 149, 151, 303 S.E.2d 624, 626, 627 (1983) (holding respondent-father willfully abandoned the juvenile where he had minimal contact for two years, even though for part of that time, having evaded his parole, "respondent feared that if he contacted the petitioner, he would be arrested and reimprisoned"). In this case, the record demonstrates Respondent often went long periods of time without contacting Petitioner, as the trial court noted in an unchallenged finding of fact, where it found Respondent "has, at times asked for visits or asked about [Brett] and then goes months and even a year at times without contact." While Respondent states he did not send any gifts or support to Petitioner or Brett because he claims Petitioner would have rejected them, he also undertook no effort to do so. Mere frustration with the parent or entity with custody of the juvenile is not sufficient to excuse a failure to visit, support, or contact the juvenile.
See In re K.B. , 177 N.C. App. 810, 630 S.E.2d 256, 2006 WL 1529667 at *5 (unpublished) (holding respondent’s frustration with DSS did not excuse failure to visit, support, contact, or inquire about juvenile where respondent contacted DSS for another purpose).
The record further demonstrates, and the trial court found as fact, that Respondent never filed any legal proceeding seeking custody or visitation. In fact, Petitioner testified that she told Respondent "to get a lawyer and take the steps necessary to be in [Brett’s] life." This Court has held that respondent’s institution of a civil action for custody during the statutory period undermined the trial court’s conclusion that he willfully abandoned the juvenile. See In re D.T.L ., 219 N.C. App. 219, 222, 722 S.E.2d 516, 518 (2012) ("Having been prohibited by court order from contacting either Petitioner or the juveniles, respondent’s filing of a civil custody action clearly establishes that he desired to maintain custody of the juveniles and cannot support a conclusion that he had a willful determination to forego all parental duties and relinquish all parental claims to the juveniles."). In this case, however, Respondent declined to do so.
Conversely, this Court has stated in an unpublished opinion that where, among other facts, the respondent did not file an action for custody or visitation, the trial court’s findings were sufficient to support a conclusion that the respondent willfully abandoned the juvenile. In re W.G.S. , 213 N.C. App. 423, 714 S.E.2d 275, 2011 WL 2848851 (2011) (unpublished).
In this case, Respondent’s attempts at contact with Brett were limited to general inquiries about his health and welfare, a request for pictures, and a request for Brett’s social security number to place Brett on Respondent’s life insurance policy. Respondent gave no gifts or support to the child during the relevant statutory period, despite his ability to do so, and naming the child as a beneficiary on the life insurance policy provided no tangible benefit during this period. Furthermore, Respondent never instituted any legal proceeding to assert his rights as a parent, such as custody or visitation. Although Petitioner may have refused attempts by Respondent to visit or give gifts or support to Brett, Respondent made no attempt to do so during the relevant period. He was not under any order not to contact Petitioner, such as a DVPO, and mere frustration with Petitioner does not excuse a failure to contact, visit, or give gifts or support. Therefore, we conclude the trial court’s findings of fact support its conclusion that Respondent willfully abandoned Brett. Accordingly, we hold the trial court did not err by determining that grounds existed to terminate Respondent’s parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(7).
Respondent next argues that the trial court abused its discretion by failing to take additional evidence on remand before entering a new dispositional order. We disagree. A trial court abuses its discretion when its decision is "manifestly unsupported by reason." White v. White , 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). In our prior opinion in this case, we remanded to the trial court solely for the purpose of making additional "findings and conclusions to support the grounds upon which [the trial court] relied to terminate [R]espondent’s parental rights." B.A.S. , ––– N.C. App. at ––––, 814 S.E.2d at 626, 2018 WL 2642843 at *5. The trial court found, in its discretion, that it was unnecessary for it to hear additional evidence for it to enter an amended order in accordance with this Court’s instructions. Respondent has failed to demonstrate that the trial court’s failure to hold a new hearing was so arbitrary as to be manifestly unsupported by reason. Accordingly, we affirm the trial court’s order terminating Respondent’s parental rights.
AFFIRMED.
Report per Rule 30(e).
Judges MURPHY and COLLINS concur.