IN THE SUPREME COURT OF NORTH CAROLINA
No. 273A19
Filed 3 April 2020
IN THE MATTER OF: B.C.B.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 22
April 2019 by Judge Kathryn Overby in District Court, Alamance County. This
matter was calendared in the Supreme Court on 25 March 2020 but determined on
the record and briefs without oral argument pursuant to Rule 30(f) of the North
Carolina Rules of Appellate Procedure.
A.E., pro se, petitioner-appellee mother.
Mercedes O. Chut for respondent-appellant father.
NEWBY, Justice.
Respondent appeals from the trial court’s order terminating his parental rights
to B.C.B. (Brian).1 We affirm.
Respondent and petitioner are the biological father and mother of Brian, who
was born in 2015 during the parties’ brief relationship. On 17 November 2016,
petitioner filed a complaint for child custody and child support and requested the
entry of an emergency ex parte temporary child custody order. The trial court granted
petitioner temporary custody of Brian by ex parte order. On 30 November 2016, the
1 A pseudonym is used to protect the identity of the juvenile and for ease of reading.
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Opinion of the Court
parties entered into a Memorandum of Judgment which granted them joint legal
custody of Brian and established a temporary custody schedule. A few months later,
the parties entered into another Memorandum of Judgment which established a
permanent child custody schedule. On 1 February 2017, petitioner obtained a
domestic violence protection order (DVPO) against respondent based on incidents
that occurred in November 2016.
In July 2017, respondent was arrested for driving while impaired. In
September 2017, respondent was involved in an altercation with his pregnant
girlfriend, which led to criminal charges and his girlfriend obtaining a DVPO against
respondent. In October 2017, petitioner filed a motion for an ex parte order seeking
sole custody of Brian. The trial court allowed the ex parte motion and suspended
respondent’s visitation until a hearing could be held. After a hearing, in November
2017, the trial court awarded petitioner sole custody of Brian and granted respondent
supervised visitation once a week at Family Abuse Services.
On 6 December 2018, petitioner filed a complaint in the trial court which she
intended to be a petition to terminate respondent’s parental rights. Respondent was
appointed counsel to represent him in the matter, and on 31 January 2019, counsel
filed a motion to dismiss for lack of subject matter jurisdiction. On 21 February 2019,
the trial court dismissed the petition for lack of subject matter jurisdiction because
the petition was not properly verified.
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Six days later, petitioner refiled her petition. Petitioner alleged respondent’s
parental rights to Brian should be terminated on the basis of willful abandonment
and respondent’s failure to pay child support. See N.C.G.S. § 7B-1111(a)(4), (7) (2019).
On 26 March 2019, respondent moved to dismiss the petition under Rule 12(b)(6) of
the North Carolina Rules of Civil Procedure. See N.C.G.S. § 1A-1, Rule 12(b)(6)
(2019). On the same day, respondent filed an answer denying many of the material
allegations in the petition. A few weeks later, prior to the termination hearing, the
trial court denied respondent’s motion to dismiss the petition.
On 22 April 2019, the trial court entered an order in which it determined that
grounds existed to terminate respondent’s parental rights on the basis of willful
abandonment. See N.C.G.S. § 7B-1111(a)(7). It also concluded that it was in Brian’s
best interest that respondent’s parental rights be terminated. The court thus
terminated respondent’s parental rights, and respondent appealed to this Court.
Respondent argues that the trial court erred (1) by denying his motion to
dismiss the petition and (2) by terminating his parental rights on the basis of willful
abandonment. We address each of these arguments in turn.
First, respondent contends that petitioner failed to sufficiently allege grounds
to terminate his parental rights under N.C.G.S. § 7B-1104 and, therefore, the trial
court should have dismissed the petition for failure to state a claim upon which relief
can be granted. Specifically, respondent claims that the petition contains allegations
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regarding the child support order and his failure to make payments under that order
but fails to allege that respondent’s failure to pay was willful. He also argues that
although the petition cites N.C.G.S. § 7B-1111(a)(7) and references the requirements
of the custody order, it neither alleges that he willfully failed to comply with the order
nor alleges facts supporting the termination of his parental rights on the basis of
willful abandonment. We disagree and hold that the petition was sufficient to survive
respondent’s motion to dismiss.
A petition seeking to terminate parental rights must state “[f]acts that are
sufficient to warrant a determination that one or more of the grounds for terminating
parental rights exist.” N.C.G.S. § 7B-1104(6) (2019). We agree with the Court of
Appeals that “[w]hile there is no requirement that the factual allegations be
exhaustive or extensive, they must put a party on notice as to what acts, omissions
or conditions are at issue.” In re Hardesty, 150 N.C. App. 380, 384, 563 S.E.2d 79, 82
(2002).
The petition here cited both N.C.G.S. § 7B-1111(a)(4) and (7) as grounds for
termination and specifically alleged that respondent’s failure to pay child support and
his abandonment of Brian were willful. In support of these allegations, petitioner
cited the trial court’s custody and child support orders. Contrary to respondent’s
claims, petitioner addressed at length respondent’s violation of the child custody
orders, which she claimed show respondent’s willful abandonment of Brian.
Petitioner specifically alleged that since September 2017, respondent had declined to
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exercise visitation as permitted by the trial court. The petition thus contained more
than a mere recitation of the statutory grounds for termination and gave respondent
sufficient notice of the “acts, omissions or conditions . . . at issue.” In re Hardesty, 150
N.C. App. at 384, 563 S.E.2d at 82. Therefore, we hold that the trial court’s denial of
respondent’s motion to dismiss was appropriate.
Second, respondent contends that the trial court erred by terminating his
parental rights on the basis of willful abandonment. Specifically, he challenges
several of the trial court’s findings of fact and argues that record evidence does not
show that he willfully abandoned Brian. We disagree and hold that the trial court’s
determination that grounds existed to terminate respondent’s parental rights was
supported by its findings of fact and that those findings are supported by clear,
cogent, and convincing evidence.
A termination of parental rights proceeding consists of an adjudicatory stage
and a dispositional stage. N.C.G.S. §§ 7B-1109, -1110 (2019); In re Montgomery, 311
N.C. 101, 110, 316 S.E.2d 246, 252 (1984). At the adjudicatory stage, the petitioner
bears the burden of proving by “clear, cogent, and convincing evidence” the existence
of one or more grounds for termination under subsection 7B-1111(a). N.C.G.S. § 7B-
1109(f) (2019). When reviewing a trial court’s determination that grounds existed to
terminate parental rights, we ask “whether the [trial court’s] findings are supported
by clear, cogent and convincing evidence and the findings support the conclusions of
law.” In re Montgomery, 311 N.C. at 111, 316 S.E.2d at 253 (citing In re Moore, 306
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N.C. 394, 404, 293 S.E.2d 127, 133 (1982)). If the petitioner meets her burden during
the adjudicatory stage, “the court proceeds to the dispositional stage, at which the
court must consider whether it is in the best interests of the juvenile to terminate
parental rights.” In re D.L.W., 368 N.C. 835, 842, 788 S.E.2d 162, 167 (2016) (citing
In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614–15 (1997); N.C.G.S. § 7B-1110).
In this case respondent only challenges the trial court’s determination at the
adjudicatory stage that statutory grounds existed to terminate his parental rights.
A trial court may terminate a parent’s parental rights 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-1111(a)(7).
“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.” In re Young, 346 N.C. at 251, 485 S.E.2d at 617 (citation omitted). “[I]f a parent
withholds his presence, his love, his care, the opportunity to display filial affection,
and wil[l]fully 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). “Whether a biological parent has a willful
intent to abandon his child is a question of fact to be determined from the evidence.”
In re Adoption of Searle, 82 N.C. App. 273, 276, 346 S.E.2d 511, 514 (1986).
“[A]lthough the trial court may consider a parent’s conduct outside the six-month
window in evaluating a parent’s credibility and intentions, the ‘determinative’ period
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for adjudicating willful abandonment is the six consecutive months preceding the
filing of the petition.” In re N.D.A., 373 N.C. 71, 77, 833 S.E.2d 768, 773 (2019)
(citation omitted).
The relevant six-month period in this case is from 27 August 2018 to 27
February 2019. The trial court made the following pertinent findings of fact:
25. The petitioner filed a motion for [an] ex parte order in
16 CVD 2098 on October 2, 2017. Judge Messick allowed
that ex parte order on October 4, 2017 suspending the
respondent father’s visitation until a hearing could be held.
26. On November 7, 2017 Judge Messick had a hearing on
the return on the ex parte order. He granted the petitioner
sole legal custody of the minor child. Judge Messick
allowed the respondent father visitation with the minor
child once a week at Family Abuse Services (FAS)
supervised visitation center.
27. The petitioner went shortly thereafter to sign up for her
portion of the supervised visitation agreement. The
respondent father spoke to his attorney about going to FAS
for visits in December 2017, but he did not contact FAS for
supervised visitation until February 15, 2019, some fifteen
months after being ordered to do so by Judge Messick.
When he did set up visitation at FAS, the respondent
father requested weekends, however he forgot that he was
to be incarcerated on weekends in March and April for a
Driving While Impaired split sentence. He also forgot to
show up for that first jail weekend, resulting in his serving
seven days straight in the Alamance County Jail. The
weekend jail schedule was set on February 7, 2019.
28. The respondent father then followed up at FAS on
March 29, 2019 about his visits with the minor child, some
six weeks after his first contact with FAS.
29. The respondent father indicated that it took from
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December 2017 to February 20182 to go contact FAS for
visits with the minor child because he had so much going
on. The Court does not find this to be credible.
30. During the ex parte hearing on November 7, 2017 the
petitioner’s attorney argued for the respondent father to
attend the domestic violence prevention program (DVPP)
before exercising visitation with the minor child. Neither
in his oral rendition of the order in open court on November
7, 2017 nor in his written order did Judge Messick order
such a requirement. Rather Judge Messick allowed the
respondent father visitation at FAS once a week with no
prerequisites.
31. The respondent father was in Court when Judge
Messick rendered his order orally. He testified that he
never received a copy in the mail of the written order.
However, the respondent father never came to the court
house and requested a copy of the order. Nor did he update
his address with the clerk’s office to receive information in
a timely fashion. His attorney argued that it was the
petitioner’s attorney’s responsibility to make sure that the
respondent father received a copy of the Court’s order. The
Court finds this to be over burdensome on the attorney. The
burden sits firmly with the party and they have the
responsibility to update the clerk with any and all address
changes.
32. The respondent father testified that he did not exercise
his visitation with the minor child nor did he reach out to
the petitioner from November 2017 through January 2018
because he thought he had to enroll in and complete DVPP
before visitation could begin. This was an erroneous
assumption. Even if he was correct in his assumption, he
did not communicate with the petitioner about the
well-being of the minor child during this time frame. He
did not send any cards, letter or presents to the minor child
during this time frame.
2 This date appears to be a clerical error. The correct date was in February 2019.
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33. The petitioner’s parents have lived in the same
residence for over twenty-eight (28) years. The respondent
father has been to that residence multiple times with the
petitioner. Yet the respondent father never made any
contact with the petitioner’s parents to inquire about the
well-being of the minor child or to leave gifts . . . for the
minor child.
....
37. On January 16, 2018 Judge Messick renewed the DVPO
for two additional years with the modification that the
respondent father was to have no contact with the
petitioner. There is no constraint on the respondent
father’s ability to contact the minor child.
....
42. Even though it was ordered in November 2017 the
respondent father did not begin DVPP until February 22,
2018. He was unsuccessfully terminated from the DVPP on
July 13, 2018 for missing four sessions, not for non-
payment.
....
58. The respondent father has willfully chosen not to see or
inquire about the minor child since September 2017.
“Findings of fact not challenged by respondent are deemed supported by
competent evidence and are binding on appeal.” In re T.N.H., 372 N.C. 403, 407, 831
S.E.2d 54, 58 (2019) (citation omitted). We review only those findings necessary to
support the trial court’s conclusion that grounds existed to terminate respondent’s
parental rights on the basis of willful abandonment. Id. at 407, 831 S.E.2d at 58–59
(citing In re Moore, 306 N.C. at 404, 293 S.E.2d at 133).
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Respondent challenges findings of fact 26, 27, 28, 30, 32, 33, 37 and 58. He first
contends that Finding of Fact No. 26 wrongly states that he was allowed visitation
with Brian because Judge Messick did not immediately institute supervised visits.
Respondent claims that, instead, Family Abuse Services imposed requirements on
both parties that were to be completed before visits could be arranged. We disagree.
The child custody order shows that respondent was granted supervised visitation
with Brian and that the only prerequisite was that both parties were required to
complete an intake session with Family Abuse Services within two weeks of the trial
court’s order. Petitioner attended an intake session on 8 November 2017, the day after
the custody hearing. Had respondent attended an intake session as ordered, he could
have exercised visitation immediately. We conclude that there is sufficient evidence
in the record to support Finding of Fact No. 26.
Respondent next challenges findings of fact 27, 28 and 30. Respondent argues
that the evidence ultimately does not show that he had the ability to complete the
intake session and attend visitation with Brian before February 2019. He also argues
that the trial court’s findings that he, in essence, willfully ignored the trial court’s
order granting him supervised visitation are not supported by the evidence. We
disagree.
Petitioner testified at the termination hearing that in open court respondent
was granted supervised visitation through Family Abuse Services with no
prerequisites. Respondent, however, testified that he believed he had to complete the
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domestic violence prevention program courses before he could exercise visitation.
After hearing the testimony of both petitioner and respondent and evaluating their
credibility, the trial court determined that there was no such requirement. This Court
is not in a position to question that determination. See In re D.L.W., 368 N.C. at 843,
788 S.E.2d at 167–68 (stating that the trial judge has the duty to consider all the
evidence, pass upon the credibility of the witnesses, and determine the reasonable
inferences to be drawn therefrom); see also Scott v. Scott, 157 N.C. App. 382, 388, 579
S.E.2d 431, 435 (2003) (stating that when the trial court sits as fact-finder, it is the
sole judge of the credibility and weight to be given to the evidence, and the appellate
courts should not substitute their judgment for the trial court’s judgment). We thus
conclude that sufficient record evidence supports findings of fact 27, 28, and 30.
The trial court’s findings of fact regarding respondent’s failure to contact
Family Abuse Services about visitation privileges until March 2019, including
findings of fact 28 and 29, are further supported by the record. Respondent contends
that he did not complete the intake session and attend visitation because he was
incarcerated three times during the relevant period. He further asserts that he did
not testify at the termination hearing that he failed to arrange visits because “he had
so much going on.” We are unpersuaded. Although respondent was incarcerated for
portions of the relevant six-month period, he was not incarcerated for its entirety.
Respondent was incarcerated when he was served with petitioner’s first petition to
terminate his parental rights, but he was released from custody soon thereafter.
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Respondent was not incarcerated in January 2019 or during the period before
respondent filed the petition to terminate his parental rights on 27 February 2019.
Respondent further testified that after he was served with the initial, improperly
verified petition to terminate his parental rights, he discussed with his attorney that
he could go to Family Abuse Services to begin the process of setting up visitation with
Brian, but nevertheless failed to do so. He also explained that he failed to go to Family
Abuse Services in January 2019 because he had “so much going on at one time.” Thus,
the trial court’s findings of fact are supported by clear, cogent, and convincing
evidence.
Respondent challenges the trial court’s factual finding stating that he was
represented by counsel at the 7 November 2017 hearing. We agree that this portion
of the trial court’s finding of fact was erroneous. Respondent’s testimony and the child
custody order from the hearing show that respondent was acting as his own counsel.
We thus disregard this portion of the trial court’s factual finding.
Respondent next argues that portions of findings of fact 32, 33, and 37 are
erroneous. He claims the record contains no evidence that he had any way to contact
Brian during the relevant six-month time period immediately preceding the filing of
the petition to terminate his parental rights. He argues that he was prevented from
contacting Brian due to the DVPO and because he did not have petitioner’s contact
information. We disagree. Though respondent may have been prevented from
contacting petitioner during the six months immediately preceding the filing of the
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petition because of the DVPO, the order did not prohibit respondent from contacting
Brian or petitioner’s parents. Petitioner also testified that respondent knew her
parents and their address but neither made an effort to contact her parents to inquire
about Brian’s welfare nor left any cards or gifts for Brian. The record contains
sufficient evidence to support the relevant portions of findings of fact 32, 33, and 37.
Respondent next challenges Finding of Fact No. 58, in which the trial court
found that he willfully chose not to see Brian. He argues that the evidence does not
show that respondent made a “willful determination to forego all parental duties and
relinquish all parental claims” to Brian. We disagree. The Court of Appeals has
correctly stated 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 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”).
The trial court’s findings of fact establish that respondent made no effort
whatsoever during the statutory period to participate in Brian’s life. These findings
are supported by clear, cogent, and convincing evidence. Petitioner filed her initial
petition to terminate respondent’s parental rights in December 2018, which was
dismissed and subsequently refilled by petitioner in February 2019. After respondent
was served with the first petition to terminate his parental rights in December 2018,
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he discussed with his attorney that he could go to Family Abuse Services to set up
visitation with Brian. Nonetheless, respondent never went to Family Abuse Services
to do so. Respondent was released from custody in December 2018, so, contrary to
respondent’s argument, his incarceration would not have hindered visitation. Though
respondent was out of jail and fully aware that he could exercise visitation rights, he
did not visit Brian. Thus, after being made aware that petitioner was seeking to
initiate proceedings to terminate his parental rights, and after being given a second
chance to prioritize his responsibility to care for Brian, respondent took no action
because he had “so much going on at one time.” Additionally, respondent neither sent
Brian any gifts or cards nor inquired about Brian’s welfare despite having petitioner’s
parents’ address. Respondent also was not prohibited from contacting them. The trial
court properly determined that respondent willfully chose not to see Brian.
The trial court’s findings of fact demonstrate that respondent “willfully
withheld his love, care, and affection from [Brian] and that his conduct during the
determinative six-month period constituted willful abandonment.” In re C.B.C., 373
N.C. 16, 23, 832 S.E.2d 692, 697 (2019) (citation omitted). The trial court
appropriately found grounds to terminate respondent’s parental rights under
N.C.G.S. § 7B-1111(a)(7). We affirm.
AFFIRMED.
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