An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-153
Filed: 1 September 2015
Burke County, No. 14 JT 18
IN THE MATTER OF: M.J.C.J.
Appeal by respondent from order entered 26 November 2014 by Judge J. Gary
Dellinger in Burke County District Court. Heard in the Court of Appeals 17 August
2015.
No brief for petitioner-appellee mother.
Miller & Audino, LLP, by Jeffrey L. Miller for respondent-appellant father.
TYSON, Judge.
Joshua Allen Jubin (“Respondent”) appeals from an order terminating his
parental rights to his child, M.J.C.J. We reverse the trial court’s order.
I. Background
Petitioner Lindsay Marie Icard Crowder (“Petitioner”) and Respondent
married on 12 May 2009 and separated on 7 November 2011. The juvenile, M.J.C.J.,
was born of the marriage in 2010. The parties divorced and Petitioner remarried. An
order entered 5 November 2012, which granted Petitioner sole custody of the juvenile,
allowed Respondent supervised visitation, and ordered him to pay child support.
IN THE MATTER OF: M.J.C.J.
Opinion of the Court
On 20 February 2014, Petitioner filed her petition to terminate Respondent’s
parental rights. At the close of the 6 November 2014 trial, the court found grounds
existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(4) (willful failure to support) and (7)
(willful abandonment) and terminated Respondent’s parental rights. Respondent
appeals.
Respondent argues the trial court erred by concluding both grounds existed to
terminate his parental rights. We agree.
II. Standard of Review
On appeal, our standard of review for the termination of
parental rights is whether the trial court’s findings of fact
are based on clear, cogent and convincing evidence and
whether the findings support the conclusions of law.
The trial court’s ‘conclusions of law are reviewable de novo
on appeal.’
In re J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006) (citations and internal
quotation marks omitted).
III. Issues
A. Willful Failure to Support
In its order entitled, Adjudication and Disposition Order Terminating Parental
Rights, the trial court found
[t]hat grounds for termination of the Respondent’s parental
rights exist pursuant to North Carolina General Statutes
§7B–1111(a)(4), in that the Respondent failed without
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IN THE MATTER OF: M.J.C.J.
Opinion of the Court
justification for a period of one year or more next preceding
the filing of the petition to pay for the care, support, and
education of the minor child . . . . .
N.C. Gen. Stat. § 7B-1111(a)(4), permits termination of parental rights if:
[o]ne parent has been awarded custody of the juvenile by
judicial decree . . . and the other parent whose parental
rights are sought to be terminated has for a period of one
year or more next preceding the filing of the petition or
motion willfully failed without justification to pay for the
care, support, and education of the juvenile, as required by
said decree or custody agreement.
N.C. Gen. Stat. § 7B–1111(a)(4) (2013) (emphasis added).
In order to terminate a parent’s rights pursuant to N.C. Gen. Stat. § 7B–
1111(a)(4), the court must find by clear, cogent and convincing evidence that
Respondent willfully failed to pay child support. In re D.R.B., 182 N.C. App. 733, 735,
643 S.E.2d 77, 79 (2007). Willfulness “imports knowledge and a stubborn resistance.”
In re Matherly, 149 N.C. App. 452, 455, 562 S.E.2d 15, 18 (2002) (citation omitted).
To support a finding of willfulness, evidence must show “a parents’ ability, or
capacity” to complete the requisite statutory requirement. Id. This Court has held
the trial court had not “adequately addressed” willfulness with respect to N.C. Gen.
Stat. § 7B-1111(2) and (3) where the trial court failed to make “specific findings of
fact showing that a minor parent’s age-related limitations as to willfulness have been
adequately considered.” Id.
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IN THE MATTER OF: M.J.C.J.
Opinion of the Court
In this case, the trial court made no finding that Respondent’s failure to pay
support was willful. The trial court found Respondent had not paid any support since
the order for support was entered on 6 November 2012. The court found Respondent
began incarceration five months later on 27 April 2013. The court found Respondent
was not eligible for work release at the time of the hearing, but would become eligible
at a later date. The court also found that Respondent successfully completed the GED
program and received a certificate of readiness to assist his ability to obtain
employment upon his release from prison, while incarcerated.
Notwithstanding these findings and with no other supporting findings, the
trial court simply stated “Respondent failed without justification” to pay for the care,
support and education of his minor child. “In the absence of a finding of willfulness,
the trial court’s order does not establish grounds for termination.” In re T.M.H., 186
N.C. App. 451, 455, 652 S.E.2d 1, 3 (citations omitted), disc. review denied, 362 N.C.
87, 657 S.E.2d 31 (2007). The trial court erred by terminating Respondent’s parental
rights without the requisite findings of fact under this statutory section.
B. Willful Abandonment
Petitioner filed her petition to terminate Respondent’s rights on 20 February
2014. The trial court’s findings show Respondent was incarcerated during the entire
six-month statutory period.
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IN THE MATTER OF: M.J.C.J.
Opinion of the Court
This Court held that findings of fact on the issue of willfulness are required for
willful abandonment. In re D.R.B., 182 N.C. App. at 738, 643 S.E.2d at 80. This Court
also held “[i]ncarceration, standing alone, is neither a sword nor a shield in a
termination of parental rights decision.” In re P.L.P., 173 N.C. App. 1, 10, 618 S.E.2d
241, 247 (2005) (citation and quotation marks omitted), aff’d per curiam, 360 N.C.
360, 625 S.E.2d 779 (2006).
While a parent’s imprisonment is relevant to the trial court’s determination of
whether a statutory ground for termination exists, it is not determinative. Id. at 13,
618 S.E.2d at 249.
Where a respondent has been and continues to be
incarcerated, our courts have prohibited termination of
parental rights solely on that factor. Compare In re
Shermer, 156 N.C. App. 281, 290–91, 576 S.E.2d 403, 409–
10 (2003) (willfulness not shown under N.C. Gen. Stat. §
7B–1111(a)(2) where the respondent was incarcerated but
wrote letters and informed DSS that he did not want his
parental rights terminated); In re Clark, 151 N.C. App.
286, 565 S.E.2d 245 (termination of parental rights
reversed where the father was incarcerated and evidence
was insufficient to find that he was unable to care for his
child), disc. rev. denied, 356 N.C. 302, 570 S.E.2d 501
(2002); In re Yocum, 158 N.C. App. 198, 204, 580 S.E.2d
399, 403 (respondent was incarcerated but also did nothing
to emotionally or financially support and benefit his
children), aff’d, 357 N.C. 568, 597 S.E.2d 674 (2003); In re
Williams, 149 N.C. App. 951, 563 S.E.2d 202 (2002)
(father’s parental rights were terminated because he was
incarcerated and he failed to show filial affection for his
child).
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IN THE MATTER OF: M.J.C.J.
Opinion of the Court
In re D.R.B., 182 N.C. App. at 738, 643 S.E.2d at 81.
The trial court made the following findings of fact:
11. That the Petitioner refused to allow the minor child to
visit the Respondent while he was incarcerated, after the
Respondent requested to see the minor child.
....
19. That the Respondent had tried to send a letter to the
minor child in July 2013 and made a telephone call in May
of 2013, with the Petitioner informing the Department of
Corrections [sic] that she did not wish to have any contact
with the Respondent, as that was ordered in her domestic
violence case Order.
Petitioner testified Respondent wrote her a letter in the summer of 2013
requesting her to bring M.J.C.J. to visit him in prison. Petitioner failed to respond to
Respondent’s letter. Instead, she contacted the prison to request Respondent send no
further mail to her.
In this letter, Respondent testified he wrote to Petitioner, “my case manager
came and got me and told me that if I had any contact with my son or any contact
with her address or her phone number that they would have to come put me in
segregation, so since then I’ve had to stop.” No other findings were made regarding
Respondent’s attempts to maintain a relationship with M.J.C.J.
The trial transcript, uncontroverted evidence, and findings of fact demonstrate
Respondent expressed a desire to maintain contact with his son, tried to set up
mechanisms to do so, and was prohibited from doing so by Petitioner. We hold the
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IN THE MATTER OF: M.J.C.J.
Opinion of the Court
evidence and these findings fail to support a conclusion that Respondent
“manifest[ed] a willful determination to forego all parental duties and relinquish all
parental claims to the child.” In re Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514
(1986) (citation omitted).
The trial court found Petitioner “refused to allow [M.J.C.J.] to visit Respondent
while he was incarcerated.” The trial court erred in concluding Respondent willfully
abandoned the juvenile pursuant to N.C. Gen. Stat. § 7B-1111 (a)(7).
IV. Conclusion
The trial court erred in concluding grounds existed to terminate Respondent’s
parental rights pursuant under either N.C. Gen. Stat. § 7B–1111(a)(4) (willful failure
to support) and (7) (willful abandonment). The trial court’s order terminating
Respondent’s parental rights is reversed.
Reversed.
Judges GEER and STROUD concur.
Report per Rule 30(e).
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