In re: S.I.D.-M.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-503

Filed 21 March 2023

Cabarrus County, No. 20-JT-109

IN THE MATTER OF: S.I.D.-M.

Appeal by petition for writ of certiorari by respondent-father from order

entered 18 March 2022 by Judge Christy E. Wilhelm in District Court, Cabarrus

County. Heard in the Court of Appeals 21 February 2023.

Richard Croutharmel, for respondent-appellant-father.

No brief for petitioner-appellee-mother.

STROUD, Chief Judge.

Respondent-father appeals from an order terminating his parental rights for

willfully abandoning his child. Father argues he did not willfully abandon his child

because he attempted to reach out to Mother by email, through the parties’ attorneys,

two weeks before the termination petition was filed. Because clear, cogent, and

convincing evidence exists in the record to support the trial court’s findings of fact,

and the trial court’s findings support its conclusion that the minor child was an

abandoned juvenile, the trial court’s termination of Father’s parental rights is

affirmed.
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Opinion of the Court

I. Background

Sidney1 was born to Mother and Father in February 2018. Mother and Father

were never married. In a previous custody proceeding in Mecklenburg County,

Mother was granted full custody of Sidney with scheduled visitation for Father.

Venue of the custody proceeding was later transferred to Cabarrus County.

In early August 2019, Father “attempted suicide and was hospitalized for

mental health purposes.” On 13 August 2019, Mother secured an ex parte custody

order suspending Father’s visitation. Mother also filed a motion to modify visitation,

and on 28 August 2019, the District Court in Cabarrus County entered a written

order extending the ex parte order and suspending Father’s visitation (the “Order

Suspending Visitation”) until he “presents himself to the Court and shows just cause

as to why his visits should be reinstated.”2 The relevant portions of the Order

Suspending Visitation, which is not at issue on appeal, state:

FINDING AS FACT

....

3. An ex parte order was entered herein on or
about August 13, 2019;

4. The Cabarrus County Department of Social
Services has opened an investigation and has been unable
to locate the [Father];

1A pseudonym is used.
2 The original custody order is not in the record on appeal, but the petition made detailed
allegations regarding the Custody Order and the Order Suspending Visitation, and Father
admitted these allegations in his answer.

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5. Service by the Sheriff was returned unserved
and [Mother] has no information regarding [Father]’s
present whereabouts;

6. [Father]’s mental stability is in question and
it would be contrary to the minor child’s best interest for
him to have visitation at this time.

Based on these Findings of Fact, the Court hereby
makes the following:

CONCLUSIONS OF LAW

....

2. This temporary order is in the best interest of
the minor child.

And based on these Findings of Fact and
Conclusions of Law:

IT IS HEREBY ORDERED ADJUDGED AND
DECREED as follows:

1. [Father]’s visitation with the minor child
[Sidney] is suspended until such time as he presents
himself to the Court and shows just cause as to why his
visits should be reinstated.

Father was unable to return to work for several months because of his mental health

issues but his therapist eventually approved his return to work in March 2020.

On 24 July 2020, Mother filed a “Petition for Termination of Parental Rights”

(the “Petition”) in the District Court, Cabarrus County. The Petition recited basic

facts about the parties, that Mother had full custody of Sidney and Father had

visitation, and then alleged:

7. Petitioner alleges that the following facts

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establish grounds for the [Father]’s parental rights to be
terminated:

a. Pursuant to 7B–1111(a)(4), [Father] has
willfully failed without justification to
adequately pay for the care, support, and
education of the juvenile in that he has fallen
behind on his child support obligation and
currently has an arrearage of approximately
$2,500.00.

b. Pursuant to 7B–1111(a)(6), [Father] is
incapable of providing for the proper care and
supervision of the juvenile in that:

i. On or about August 2, 2019, [Father]
attempted suicide by jumping off [a
bridge]. [Father] was saved by a
Charlotte-Mecklenburg Police Officer. He
was then escorted by ambulance to
Novant–Mill Hill where he was
hospitalized for a mental health
evaluation.

c. Pursuant to 7B–1111(a)(7), [Father] has
willfully abandoned the juvenile for at least six
consecutive months immediately preceding the
filing of this petition based upon the following:

i. Respondent has not visited with the child
since July 2019;

ii. Since the Order on August 28, 2019,
[Father] has not made any efforts to reach
out to [Mother] about the minor child nor
has he filed anything in the Chapter 50
Action to have his visitation reinstated;

iii. Respondent has at all times known how to
contact [Mother] either via phone or email.
[Father] knows [Mother]’s residential
address as well as how to contact [Mother]

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Opinion of the Court

through her family[.]

Father filed an answer 10 September 2020 admitting the allegations regarding

the parties’ and child’s residences, the parties’ status as parents of the child, and

allegations regarding the prior custody action and the Order Suspending Visitation.

Father denied the remaining allegations of the Petition. As to the grounds for

termination, Father’s answer stated:

7. The allegations contained in Paragraph 7 are denied.
a. Denied as to willfulness. [Father] was out of
work following his mental health crisis and
began to resume his child support payments
upon returning to work.
b. Admitted as to the incident [of attempted
suicide], but denied as to a continual issue that
would render [Father] incapable of providing for
the proper care and supervision of the juvenile
following his treatment after his mental health
crisis.
c. Denied as to willfulness.
i. Admitted as to time [Father] has not seen
his child.
ii. Denied. [Father] obtained counsel and
reached out via counsel as to what
documentation was needed to resume
visits on July 13, 2020 and Petitioner
responded by filing to terminate his rights
on July 23, 2020.
iii. [Father] has [Mother’s] email and was
communicating with her via email through
at least August 2019 about their child.

A Guardian ad litem (“GAL”) was appointed 15 September 2020 and the hearing was

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continued until 27 October 2020.3 The Termination of Parental Rights (“TPR”)

hearing was then repeatedly continued before ultimately being set for 21 February

2022.

Our dissenting colleague notes that the TPR hearing was “inexplicably”

delayed, and while we agree the record does not fully explain all the continuances, it

does include all the relevant motions and orders. We also note Father did not raise

any argument on appeal as to any continuance or the trial court’s denial of his motion

to continue filed just before the final hearing. In fact, the delay would have served

only to benefit Father, as it gave him more time and opportunity to demonstrate his

concern for the child by requesting an opportunity to see or communicate with her,

seeking information regarding her development and welfare, or sending gifts or cards.

According to the record, on 27 October 2020, both parents, their counsel, and

the GAL were present and the Pretrial Order was entered; the date of the TPR

hearing was to be determined. On 20 April 2021, a “status review” hearing was set

for 11 May 2021. At the 11 May 2021 hearing, a continuance order was issued for

purposes of the GAL report and hearing was set for 25 May 2021. At the 25 May 2021

hearing, the hearing was continued to 6 July 2021 for purposes of review of the status

3 At the TPR hearing both parties reference a motion Father apparently made September
2020 to attempt to resume visitation. The trial court’s TPR order also references this motion.
The record does not contain this motion and the evidence presented at the hearing did not
address the details of the motion or the disposition, if any. The only document filed by Father
in September 2020 in the record is Father’s answer.

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of the GAL report and the hearing was “continued for Dom Setting Request” and set

for 6 July 2021. On 4 June 2021, Mother’s counsel filed a “Juvenile Case Request for

Setting,” and on 15 June 2021, the Chief District Court Judge set the matter for

hearing on 26 August 2021. On or about 24 August 2021, Father filed an “Objection

to Holding Audio-Video Hearing and Motion to Continue” to the hearing set for 26

August 2021. According to Father’s Motion to Continue, the hearing had been set as

an in-person hearing but on 23 August 2021, Mother’s counsel “notified the Court of

a health issue that would prevent her client from attending the hearing in person.”

Father informally objected by email to a remote hearing, but then received an order

setting the hearing as a WebEx hearing on the originally-scheduled date of 26 August

2021. Father objected to a remote hearing for various reasons and requested that the

case be continued “until such time as it is safe for the matter to be heard in person.”

On 24 August 2021, the trial court entered an order denying Father’s motion to

continue. The trial court found that the minor child had tested positive for COVID

and the parties had attempted to find an alternative in-person hearing date within

the following 30 days but were unable to find a suitable date. The trial court denied

continuance to avoid further delay. However, on 26 August 2021, the trial court

entered a Continuance Order noting Mother’s COVID exposure and that both

attorneys had agreed to continue the hearing to 12 October 2021. On 12 October

2021, the trial court entered an “Order Continuing Case Off Calendar” finding

Father’s attorney made a motion to continue in open court and Mother’s attorney

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consented to continue to a new date to be determined. On the same day, Mother’s

attorney filed a “Juvenile Case Request for Setting,” and on 19 October 2021, the

Chief District Court Judge noticed the TPR hearing for 21 February 2022.

The TPR hearing was held 21 February 2022. Father’s arguments on appeal

only address the adjudicatory phase of the hearing. During the adjudicatory phase

of the hearing, Father testified that at the time, in August 2019, when he was having

his mental health crisis, he was not aware of the return hearing for the ex parte order,

but later he did become aware of the Order Suspending Visitation entered 28 August

2019. Father then testified that although he did not personally schedule anything

with the trial court to resume visitation, as directed in the Order Suspending

Visitation, he did attempt to resume visitation by communicating with Mother

through his attorney.

Father testified he thought “there was a no[-]contact order in place” and he

“did not want to violate that order, so what [he] did was just try to make sure

everything was done with [his] mental health so [he] could get documentation proving

that [he was] not a threat to [his] child.” Father also testified he believed the Order

Suspending Visitation was similar to a domestic violence protective order, and

Mother “advised [him] that there was a no[-]contact order in place[,]” which is why

he attempted to work with his attorney to resume visitation and never reached out

to Mother directly. Father testified he had not attempted to send gifts or otherwise

contact Sidney while he recovered from his mental health crisis and confirmed by the

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time of the hearing it had been approximately 18 months since he had contact with

Sidney.

Mother testified she had not heard from Father since he was released from the

hospital in August 2019. Mother testified her contact information had not changed

since the last time she spoke to Father and that Father had also been provided

Mother’s sister’s contact information that he could use to reach out to contact Mother.

Mother then testified she had heard from Father as part of the TPR proceedings in

July 2020.

As to the Order Suspending Visitation, Mother confirmed she spoke with

Father and “let him know that there was an order in place and he had to contact the

county case worker that was assigned to the case and that they were trying to locate

him.” Mother also testified the Order Suspending Visitation was not a no-contact

order and Mother “told [Father] that he would have to go through the county case

worker and through court to file the motion” to resume visitation with Sidney.

Mother then testified she was told about the July 2020 email from Father’s attorney;

the email said Father was “looking to resume visits;” and the email was received prior

to her filing of the Petition.

Less than 30 days following the hearing, as required by North Carolina

General Statute § 7B-1109, on 18 March 2022, the trial court entered an order

terminating Father’s parental rights (the “TPR Order”). The TPR Order makes

adjudicatory findings of fact addressing the Custody Order and Father’s attempted

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suicide. The TPR Order also finds as fact that Father made no efforts to contact

Mother since 2019, even though Father had contact information for Mother, and

Father’s attorney did contact Mother’s attorney in July 2020. The trial court also

found Father had resumed paying child support upon returning to work.

The trial court ultimately found evidence did not exist to support termination

of Father’s parental rights on the grounds he failed to pay child support or that Father

was incapable of providing for the care and supervision of Sidney. The trial court did

conclude Father’s parental rights should be terminated “[p]ursuant to [North

Carolina General Statute §] 7B–1111(a)(7), [because Father] ha[d] willfully

abandoned [Sidney] for at least six consecutive months immediately preceding the

filing of th[e] petition based upon” the trial court’s findings and Father’s statements

at the TPR hearing and also because “[f]or at least the six (6) months preceding the

filing of the Petition, [Father] withheld his presence, love, and care from the child.”

The Order then makes dispositional findings and concludes Father’s parental rights

should be terminated. Father filed notice of appeal 21 April 2022.

II. Jurisdiction

Father filed a Petition for Writ of Certiorari with this Court stating his notice

of appeal was untimely, but also noting no certificate of service was attached to the

trial court’s TPR Order. The record does not contain a certificate of service attached

to the TPR Order so our record does not provide the date Father was served with the

TPR Order. Father also noted “[o]ur Juvenile Code requires that both [Father] and

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his trial counsel sign the notice of appeal[,]” see N.C. Gen. Stat. § 7B-1001(c) (2022);

N.C. R. App. P. 3.1(a), otherwise this Court is without jurisdiction to hear an appeal

from a termination of parental rights. See In re L.B., 187 N.C. App. 326, 331-32, 653

S.E.2d 240, 244 (2007). The signature date on Father’s notice of appeal is 12 April

2022. Father asserts he and his trial counsel met on 12 April 2022 to sign the notice

of appeal and he had no control over trial counsel’s actions after he signed the notice

of appeal; the potentially late filing is therefore no fault of his own.

North Carolina General Statute § 7B-1001(b) requires notice of appeal to “be

made within 30 days after entry and service of the order” appealed from. N.C. Gen.

Stat. § 7B-1001(b) (2022). However, there is no indication in the record when Father

was served the 18 March 2022 TPR Order. If the TPR Order was served between 18

March 2022 and 20 March 2022, then Father’s 21 April 2022 notice of appeal was

untimely. If Father was served after 21 March 2022, then Father’s 21 April 2022

notice of appeal was timely.

We have considered the gravity of termination of Father’s parental rights and

Father’s assertion that he timely met with his counsel and signed the notice of appeal.

In addition, if Father’s appeal was actually filed late, the greatest period by which

Father’s appeal could be untimely was the short, 3-day difference between 18 April

2022 and 21 April 2022. In an abundance of caution and in our discretion we allow

Father’s Petition for Writ of Certiorari. See generally N.C. R. App. P. 21; see also

State v. Gardner, 225 N.C. App. 161, 165, 736 S.E.2d 826, 829 (2013) (“We have also

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held that where a [respondent] has lost his right of appeal through no fault of his

own, but rather as a result of the actions of counsel, failure to issue a writ of certiorari

would be manifestly unjust.”).

III. Father’s Appeal

Our Juvenile Code establishes a two-stage framework for the termination of

parental rights; the first stage is adjudicatory and the second dispositional. See N.C.

Gen. Stat. §§ 7B-1109, 1110 (2020). Father only challenges the adjudication of Sidney

as abandoned, and his sole argument on appeal is that “[t]he trial court reversibly

erred in concluding the existence of the ground of abandonment to terminate

[Father]’s parental rights because the evidence failed to support the findings of fact

and the findings of fact failed to support this conclusion of law.” For the reasons

below, we disagree and affirm the trial court’s TPR Order.

A. Standard of Review

At the adjudicatory stage, “[t]he standard of review in termination of parental

rights cases is whether the findings of fact are supported by clear, cogent and

convincing evidence and whether these findings, in turn, support the conclusions of

law.” In re C.M.P., 254 N.C. App. 647, 654, 803 S.E.2d 853, 858 (2017) (quotation

marks omitted). “If the trial court’s findings of fact are supported by ample,

competent evidence, they are binding on appeal, even though there may be evidence

to the contrary.” Id. (quotation marks omitted). “Unchallenged findings of fact are

conclusive on appeal and binding on this Court.” Id. (quotation marks omitted). The

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trial court’s conclusions of law are reviewed de novo. Id. (citation omitted).

B. Abandonment of a Juvenile

The trial court terminated Father’s parental rights pursuant to North Carolina

General Statute § 7B-1111(a)(7) for willfully abandoning Sidney at least six months

before the Petition was filed. North Carolina General Statute § 7B-1111(a)(7)

provides that:

(a) The court may terminate the parental rights upon a
finding of one or more of the following:

....

(7) The parent has willfully abandoned the juvenile for
at least six consecutive months immediately preceding
the filing of the petition or motion[.]

N.C. Gen. Stat. § 7B-1111(a)(7) (2020).

Our Supreme Court has further defined willful abandonment:

We have held that “[a]bandonment 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. 244, 251, 485
S.E.2d 612, 617 (1997) (quoting In re Adoption of Searle, 82
N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986)); see also
Pratt v. Bishop, 257 N.C. 486, 502, 126 S.E.2d 597, 608
(1962) (“Abandonment requires a wil[l]ful intent to escape
parental responsibility and conduct in effectuation of such
intent.”). “It has been held that if 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.” Id. at 501, 126 S.E.2d at 608.

In re E.H.P., 372 N.C. 388, 393, 831 S.E.2d 49, 52 (2019). “In this context, the word

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[‘]willful’ encompasses more than an intention to do a thing; there must also be

purpose and deliberation. 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 A.K.D., 227

N.C. App. 58, 61, 745 S.E.2d 7, 9 (2013) (quotation marks omitted). But, “[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) (citation omitted).

Further, “‘[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 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) (quoting In re D.E.M., 257 N.C. App. 618, 619, 810 S.E.2d 375, 378

(2018)). Here, because the Petition was filed 24 July 2020, the relevant six-month

period for purposes of North Carolina General Statute § 7B-1111(a)(7) was 24

January 2020 to 24 July 2020. See N.C. Gen. Stat. § 7B-1111(a)(7).

We first address the findings of fact Father specifically challenges as

unsupported by the evidence presented at the TPR hearing. This Court reviews the

challenged findings for whether they “are supported by clear, cogent and convincing

evidence[, and] . . . [i]f the trial court’s findings of fact are supported by ample,

competent evidence, they are binding on appeal, even though there may be evidence

to the contrary.” In re C.M.P., 254 N.C. App. at 654, 803 S.E.2d at 858 (citation and

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quotation marks omitted).

1. Finding 14

Finding 14 states: “In July 2020, an attorney for [Father] contacted the

attorney for [Mother].” Father asserts finding 14 is “erroneous as a matter of law

because it fails to include the reason for the July 2020 [email],” and the reason for the

email, that Father wanted to resume visits, “negated the TPR ground of

abandonment.”

We first note a copy of this email is not in the record on appeal. However,

Mother testified about an email from July 2020:

[Father’s Counsel]: Did your attorney communicate when
she received communications in your case from either a
party or an attorney?

[Mother]: Yes.

[Father’s Counsel]: And were you made aware of an e-mail
that was sent in July?

[Mother]: I believe it was -- she attached it, or there was a
forward in there, so yes.

[Father’s Counsel]: Did you (inaudible) an e-mail?

[Mother]: Yes

[Father’s Counsel]: On [Father’s] behalf about re-starting
visitation?

[Mother]: It was sent through the -- I think what the e-mail
said was he’s looking to resume visits, yes.

[Father’s Counsel]: Okay. And when did you get that in
comparison to when you filed the TPR?

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[Mother]: That was all in July.

[Father’s Counsel]: And did you get the e-mail before you
filed the TPR?

[Mother]: Yes.

After this exchange, Mother admitted her response after receiving the email was to

file the Petition. This exchange is the only reference in the entire record to the

substance of an email in July 2020 in which Father sought to resume visits with

Sidney.

Finding 14 is supported by the evidence, as Father’s attorney did contact

Mother’s attorney by email. But the sole evidence indicating this email had anything

to do with visitation is Mother’s uncertain statement: “I think what the e-mail said

was he’s looking to resume visits, yes.” Father did not testify about the substance of

the email sent in July 2020; he only testified about general contact with his attorney

“about getting everything started back up for my visitation.” And, as stated above,

the email was not presented to the trial court and is not in the record for this Court

to review.

Father’s argument that finding 14 “is woefully inadequate in that it fails to

indicate the nature of the July 2020 [email] contact” is without merit. The trial court

has the duty of evaluating the weight and credibility of the evidence, see, e.g., In re

K.W., 282 N.C. App. 283, 290, 871 S.E.2d 146, 152 (2022) (citation omitted), and in a

TPR case, before making a finding of fact, the trial court must be sufficiently satisfied

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with the evidence to be able to find the facts by clear, cogent, and convincing evidence.

In re B.C.B., 374 N.C. 32, 35, 839 S.E.2d 748, 751 (2020). Considering the minimal

evidence that the email was regarding visitation, the trial court’s finding is proper.

The finding acknowledges there was a contact between the parties’ attorneys and the

trial court did not have any obligation to address the nature of the July 2020 contact

further.

2. Findings 12 and 21

Father next disputes findings 12 and 21 because “[t]hese two findings are

contradicted by finding of fact #14[.]” Finding 12 states, “[Father] did not make any

further efforts to contact [Mother].” Finding 21 states, “Other than the one phone

call to [Mother] in August 2019, [Father] did not attempt to contact [Mother] to set

up a visit or to check on the child.”

Finding 12 is not inconsistent with finding 14. Finding 12 immediately

followed finding 11, which was unchallenged on appeal and stated:

[Father] called [Mother] one time in August 2019 after he
was released from the hospital. [Mother] informed him
that there was a new custody order in place and indicated
that he should contact the social worker handling the
Department of Social Services case.

Finding 11 summarizes the direct contact between Father and Mother since Father’s

mental health crisis. When read in context, finding 12 builds on the context from

finding 11, and there was “ample, competent evidence[,]” In re C.M.P., 254 N.C. App.

at 654, 803 S.E.2d at 858, to support a finding that Father did not attempt to directly

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call or contact Mother to seek visitation with Sidney between August 2019 and July

2020.

At trial, Father testified he believed a no-contact order was in place. Father

also testified he was never served with a no-contact order, and he believed the Order

Suspending Visitation was a no-contact order because he did not read the order

thoroughly enough. The Order Suspending Visitation was in evidence and it has no

provisions barring Father from contact or communication with Mother or Sidney; it

only suspends his visitation set by prior order “until such time as he presents himself

to the Court and shows just cause as to why his visits should be reinstated.” When

questioned on his contact with Mother, Father admitted he never texted or called

Mother, although he had her contact information; Father agreed he never “tried to

send any cards or gifts or letters[;]”and Father agreed he never “tried to communicate

with [Mother] in any way about [Sidney’s] well[-]being over the last couple years[.]”

Mother testified that she had not heard from Father since August 2019, her

contact information had not changed, and he was not blocked from communicating

with her in any way. Similar to finding 14, the only evidence that Father contacted

Mother regarding anything to do with Sidney is an equivocal statement by Mother

that she heard from Father in July of 2020 and she thought Father had expressed a

desire to resume visitation. The evidence in the Record is sufficient to support finding

12, and finding 12 does not contradict finding 14. Finding 21 is not erroneous for the

same reasons. There was competent evidence to support the trial court’s findings

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that Father did not attempt to contact Mother between August 2019 and July 2020

regarding Sidney’s welfare.

3. Finding 25

Finding 25 states: “At the time of the filing of the Petition, it had been eleven (11)

months since the [Father] had visited with the child or communicated with the

[Mother] about her well-being, a fact which he admits.” Father asserts this finding

is erroneous for the same reasons as findings 12, 14, and 21. Father asserts his

attorney’s email contained a request for visitation and “[s]uch a contact was

tantamount to a communication with [Mother] about Sidney’s well-being.” We

disagree. We have already addressed all the evidence regarding the substance of the

email, which is minimal. There was no evidence Father requested any information

about Sidney’s health, development, or welfare. At most, the email between the

parties’ attorneys was Father “merely expressing a desire for the return of the

abandoned juvenile.” In re C.J.H., 240 N.C. App. at 504, 772 S.E.2d at 92. For the

reasons discussed above, this finding is supported by the evidence.

4. Conclusions of Law

Father then challenges finding 36 and asserts finding 36 is actually a

conclusion of law because “it mirrors the language from the TPR statute on the

abandonment ground.” We agree and will review finding 36, as well as the trial

court’s other conclusions, de novo. In re C.M.P., 254 N.C. App. at 654, 803 S.E.2d at

858; see also In re Helms, 127 N.C. App. 505, 510-11, 491 S.E.2d 672, 675-76 (1997)

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(“[A]ny determination requiring the exercise of judgment, . . . or the application of

legal principles, . . . is more properly classified a conclusion of law.”).

Finding 36 states:

36. That the Court finds by clear, cogent and
convincing evidence that the following grounds exist to
terminate the parental rights of [Father] . . . :

a. Pursuant to 7B–1111(a)(7), [Father] has
willfully abandoned the juvenile for at least
six consecutive months immediately
preceding the filing of this petition based
upon the previously stated Findings of Fact
and [Father]’s own admission.

b. For at least the six (6) months preceding the
filing of the Petition, [Father] withheld his
presence, love, and care from the child.

c. The Court specifically reviewed the Supreme
Court of North Carolina’s ruling in 372 N.C.
388 In the Matter of E.H.P. and K.L.P. filed
August 16, 2019 in which a termination of
parental rights was upheld even with a no-
contact order actually in place.

The trial court ultimately concluded:

3. That by clear, cogent and convincing evidence
[Father]: has willfully abandoned the juvenile for at least
six consecutive months immediately preceding the filing of
the petition as set forth in § 7B–1111[(a)](7).

Father’s conduct met the statutory standard for willful abandonment under North

Carolina General Statute § 7B-1111(a)(7), and these conclusions were not made in

error.

By Father’s own admission, he had no contact with Sidney during the six

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Opinion of the Court

months preceding the filing of the Petition. Father made no effort to inquire about

Sidney’s welfare, either before or after the Petition was filed, even though he had

current contact information, and he was not blocked from communicating with

Mother. It is unfortunate he did not read the Order Suspending Visitation well

enough to realize it was not a “no[-]contact” order particularly because the order set

forth what he needed to do to resume visitation. And although the trial court must

consider Father’s conduct during the six months preceding the filing of the petition

determinative, “the trial court may consider a parent’s conduct outside the six-month

window in evaluating a parent’s credibility and intentions.” In re N.D.A., 373 N.C.

at 77, 833 S.E.2d at 773. During a time period of over thirty months from August

2019, when Father was released from the hospital, until the TPR hearing in February

2022, Father’s sole attempts at contact or communication with Mother or Sidney were

the one phone call to Mother in August 2019 and the July 2020 email from his

attorney to Mother’s attorney.

Father’s admission to not fully reading the Order Suspending Visitation cuts

both ways. The trial court could have believed Father acted reasonably when he did

not seek to see Sidney based upon his erroneous belief he was subject to a no-contact

order. Father argues the trial court should have interpreted the evidence in this

manner, and our dissenting colleague would agree. Or the trial court could infer–and

did infer–Father was not sufficiently motivated or interested in resuming contact

with Sidney even to take a few moments to read the Order Suspending Visitation

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Opinion of the Court

carefully, even though he admittedly knew the order addressed custody of his child.

On the one occasion Father contacted Mother in August 2019, Mother told Father

that he simply needed to contact the county official managing Sidney’s case and show

the trial court that he had adequately recovered from his mental health crisis and

then Father would be able to resume visits with Sidney. Mother’s comments to

Father were consistent with the provisions of the order, which noted that “[t]he

Cabarrus County Department of Social Services [“DSS”] has opened an investigation

and has been unable to locate the [Father]; . . . [Father]’s mental stability is in

question and it would be contrary to the minor child’s best interest for him to have

visitation at this time[;]” and “visitation with the minor child [Sidney] is suspended

until such time as he presents himself to the Court and shows just cause as to why

his visits should be reinstated.” But Father did not contact Cabarrus County DSS

and did not present himself to the trial court to demonstrate he had recovered

sufficiently to resume visitation, although he testified that he had stopped seeing his

therapist and returned to work in March 2020–four months prior to the filing of the

Petition. Father also testified he did not attempt to file a motion to resume visitation

with Sidney with the trial court until September 2020, several months after the

Petition was filed.

The trial court’s findings were sufficient to support the conclusion that Father

willfully abandoned Sidney. The trial court’s findings addressed Father’s mental

health crisis, his contact with Mother in August 2019, his receipt of the Order

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Opinion of the Court

Suspending Visitation, his failure to attempt to contact Mother again, and his failure

to take any other action to resume visitation or even to send a card or a gift to the

child, even though he was not prohibited from doing so.

We conclude the trial court’s findings support its conclusion of abandonment

as defined by § 7B-1111(a)(7). See In re C.M.P., 254 N.C. App. at 654, 803 S.E.2d at

858. Because Father did not challenge the dispositional portion of the TPR hearing,

we do not review the trial court’s dispositional findings and conclusions.

IV. Conclusion

The trial court’s adjudicatory findings are supported by clear, cogent, and

convincing evidence and were not made in error. These findings support the trial

court’s conclusions of law. The trial court’s termination of Father’s parental rights is

affirmed.

AFFIRMED.

Judge ARROWOOD concurs.

Judge TYSON concurs in part and dissents in part.

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 No. COA22-503 – In re: S.I.D.-M.

TYSON, Judge, concurring in part and dissenting in part.

I concur to allow Father’s Petition for Writ of Certiorari. See N.C. R. App. P.

21. “We have also held that where a [respondent] has lost his right of appeal through

no fault of his own, but rather as a result of the actions of counsel, failure to issue a

writ of certiorari would be manifestly unjust.” State v. Gardner, 225 N.C. App. 161,

165, 736 S.E.2d 826, 829 (2013). Father’s appeal is properly before us.

In this private termination of parental rights petition (“TPR”) brought by

Mother, I also agree the trial court correctly found and concluded Mother’s evidence

did not support her asserted TPR grounds alleging Father had failed to pay child

support or that Father was incapable of providing for the care and supervision of his

daughter, Sidney, to terminate Father’s parental rights.

The sole basis the trial court found to support Mother’s petition to terminate

Father’s parental rights was “[p]ursuant to [N.C. Gen. Stat. §] 7B-1111(a)(7), [on the

grounds Father] ha[d] willfully abandoned [Sidney] for at least six consecutive

months immediately preceding the filing of th[e] petition based upon” the trial court’s

findings and Father’s statements at the TPR hearing and also because “[f]or at least

the six (6) months preceding the filing of the Petition, [Father] withheld his presence,

love, and care from the child.”

Father challenges the adjudication of Sidney as being “abandoned” and argues

“[t]he trial court reversibly erred in concluding the existence of the ground of

abandonment to terminate [Father]’s parental rights because the evidence failed to
 IN RE: S.I.D.-M.

TYSON, J., concurring in part and dissenting in part

support the findings of fact and the findings of fact failed to support this conclusion

of law.” I agree with Father that Mother has failed to carry her burden and to prove

Father’s abandonment by clear, cogent, and convincing evidence. I respectfully

dissent.

I. Standard of Review

Mother, as petitioner, carries and maintains the burden of proof. “The

standard of review in termination of parental rights cases is whether the findings of

fact are supported by clear, cogent and convincing evidence and whether these

findings, in turn, support the conclusions of law.” In re C.M.P., 254 N.C. App. 647,

654, 803 S.E.2d 853, 858 (2017) (citations and quotation marks omitted). The trial

court’s conclusions of law are reviewed de novo on appeal. Id. (citation omitted).

Our Supreme Court has recently held:

While the question of willful intent is a factual one for the
trial court to decide based on the evidence presented, and
while the trial court’s factual determination is owed
deference, it remains [the appellate court’s] responsibility
as the reviewing court to examine whether the evidence in
the case supports the trial court’s findings and whether, as
a legal matter, the trial court’s findings support its
conclusions of law.

In re B.R.L., 379 N.C. 15, 18, 863 S.E.2d 763, 767 (2021) (citations omitted).

II. Analysis

While Father was undergoing medical treatment, Mother sought and secured

an ex parte custody order suspending Father’s visitation with his daughter on 13

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 IN RE: S.I.D.-M.

TYSON, J., concurring in part and dissenting in part

August 2019. Mother also filed a motion to modify visitation. The trial court entered

a written order on 28 August 2019 extending the ex parte order and suspended

Father’s visitation (the “Order Suspending Visitation”) until Father “presents himself

to the Court and shows just cause as to why his visits should be reinstated.” Less

than a year later and after Father had twice contacted Mother to resume visitation

with his daughter, Mother filed a “Petition for Termination of Parental Rights” on 24

July 2020.

Father’s answer was filed 10 September 2020. He admitted the allegations

regarding the parties’ and child’s residences, the parties’ status as parents of the

child, the prior custody action, and Mother’s ex parte petition pre-emptively seeking

the Order Suspending Visitation.

The record shows the court appointed a Guardian ad litem (“GAL”) on 15

September 2020, and the scheduled hearing was continued until 27 October 2020.

During this time, and while the Order Suspending Visitation prevented visitation

between Father and his daughter, Sidney, the Termination of Parental Rights

hearing was inexplicitly and repeatedly continued before ultimately being held on 21

February 2022. The order from the hearing was entered 18 March 2022.

Mother’s pre-emptive ex parte Order has succeeded in denying Father of

visitation with Sidney for nearly four (4) years. Mother testified her husband,

Sidney’s step-father, plans to adopt Sidney “immediately” if and after Father’s

parental rights were terminated. (“Yes, we’d like to do [an adoption] immediately.”).

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 IN RE: S.I.D.-M.

TYSON, J., concurring in part and dissenting in part

Father’s persistence to maintain his parental rights in the face of Mother’s repeated

efforts to exclude him from his daughter’s life clearly demonstrates he did not and

has no intent to willfully “abandon” her. In re B.R.L., 379 N.C. at 18, 863 S.E.2d at

767. The majority’s opinion asserts “the Petition was filed 24 July 2020, [and] the

relevant six-month period for purposes of North Carolina General Statute § 7B-

1111(a)(7) was 24 January 2020 to 24 July 2020. See N.C. Gen. Stat. § 7B-1111(a)(7).”

The record is clear Mother did everything she could to deny Father of any

contact with his daughter and calculated to take deliberate advantage of Father’s

mental illness. Immediately after Father’s release, undisputed evidence shows and

the trial court found Father directly contacted Mother to resume his visitation.

Mother testified and admitted Father had communicated with her regarding

resuming visitation and she had “let him know that there was an order in place and

he had to contact the [DSS] county case worker that was assigned to the case and

that they were trying to locate him.”

Mother also testified and admitted she had “told [Father] that he would have

to go through the county case worker and through court to file the motion” to resume

his visitation with Sidney. Mother also admitted she knew or was told about the July

2020 email from Father’s attorney, the email said Father was “looking to resume

visits,” and the email was received prior to her filing the Petition.

Father correctly argues finding of fact 14 is “erroneous as a matter of law

because it fails to include the reason for his attorney’s July 2020 [email],” his

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TYSON, J., concurring in part and dissenting in part

retaining of counsel to resume visitation, and the reason for the email asserting

Father wanted to resume visits, “negated the TPR ground of abandonment” under

the statute. Mother expressly admitted during cross-examination by Father’s

attorney that she had received written notice from Father or his attorney in July

2020, expressing Father’s desire to resume visitation with Sidney. Mother’s response

after receiving the email was to file the private TPR Petition before us.

In addition, both parties reference a motion Father made in September 2020

to attempt to resume visitation. The trial court’s TPR order also expressly references

this motion.

Here, Mother’s evidence does not support the trial court’s finding that Father

“willfully abandoned” Sidney during the relevant six-month period. In re B.R.L., 379

N.C. at 18, 863 S.E.2d at 767. “Abandonment requires a wil[l]ful intent to escape

parental responsibility and conduct in effectuation of such intent.” Pratt v. Bishop,

257 N.C. 486, 502, 126 S.E.2d 597, 608 (1962) (citation omitted). “It has been held

that if 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.” Id. at 501, 126 S.E.2d at

608 (citation omitted) (emphasis supplied).

“To find that a parent has willfully abandoned his or her child, the trial court

must ‘find evidence that the parent deliberately eschewed his or her parental

responsibilities in their entirety.” In re A.L.L., 376 N.C. 99, 110, 852 S.E.2d 1 (2020)

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 IN RE: S.I.D.-M.

TYSON, J., concurring in part and dissenting in part

(emphasis supplied) (quoting In re E.B., 375 N.C. 310, 318, 847 S.E.2d 666, 673

(2020)). The trial court’s rejection of Mother’s allegations that Father had failed to

pay child support or that Father was incapable of providing for the care and

supervision of his daughter, Sidney, also supports Father’s claim he had not willfully

“eschewed his . . . parental responsibilities in their entirety.” Id. (emphasis supplied).

Our Supreme Court has held: “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. 244, 251, 485 S.E.2d

612, 617 (1997) (quoting In re Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d

511, 514 (1986)). This Court has held: “[i]n this context, the word ‘willful’

encompasses more than an intention to do a thing; there must also be purpose and

deliberation.” In re A.K.D., 227 N.C. App. 58, 61, 745 S.E.2d 7, 9 (2013) (quotation

marks omitted)(emphasis supplied).

The trial court’s conclusion to terminate Father’s parental rights is not

supported by its findings of fact of either “willful” and “purpose and deliberation” of

Father’s intent to abandon Sidney. Id.

Under the statute, “the trial court may consider a parent’s conduct outside the

six-month window in evaluating a parent’s credibility and intentions, [but] the

‘determinative’ period 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) (quotation marks omitted) (quoting In re D.E.M., 257 N.C. App. 618,

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TYSON, J., concurring in part and dissenting in part

619, 810 S.E.2d 375, 378 (2018).

Father’s arguments have merit. Mother failed to carry her burden to produce

clear, cogent, and convincing evidence to support the trial court’s findings. As such

on de novo review, the trial court’s conclusions of law are unsupported by the findings

of fact and are erroneous and prejudicial. In re B.R.L., 379 N.C. at 18, 863 S.E.2d at

767.

Father also disputes findings of fact 12 and 21 and argues “[t]hese two findings

are contradicted by finding of fact # 14[.]” Finding of fact 12 states: “[Father] did not

make any further efforts to contact [Mother].” Finding of fact 21 states: “Other than

the one phone call to [Mother] in August 2019, [Father] did not attempt to contact

[Mother] to set up a visit or to check on the child.” As noted above, the undisputed

evidence and testimony clearly shows otherwise.

The majority’s assertion “the trial court must be sufficiently satisfied with the

evidence to be able to find the facts by clear, cogent, and convincing evidence”

misstates this Court’s standard of review by summarily affirming its conclusion to

terminate Father’s parental rights for abandonment of his daughter. That conclusion

is not based upon clear, cogent, and convincing evidence and findings. See Id. In

light of Mothers failure to carry her burden, Father’s constitutionally-protected

parental rights prevail and must be preserved. Id.

III. Conclusion

I concur to allow Father’s PWC and to affirm the trial court’s conclusions that

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TYSON, J., concurring in part and dissenting in part

Father supported his daughter and of him being a fit and proper parent to resume

visitation with his child.

Mother’s undisputed motives, admitted actions, and her failure to carry her

burden under the statute, considered together with Father’s undisputed efforts to

make repeated contacts, and retaining counsel to preserve his parental rights,

compels reversal. The trial court’s adjudicatory findings are not supported by clear,

cogent, and convincing evidence and its conclusions are affected by error. Id. These

findings do not support the trial court’s conclusions of law to terminate Father’s

constitutionally-protected parental rights based solely on Father’s abandonment.

The trial court’s TPR order, based solely on the grounds of Father’s “willful

abandonment”, is affected by error and is properly reversed. Id. I respectfully

dissent.

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