374 N.C. 32
N.C.2020Background:
- Child (Brian) born 2015 to petitioner (mother) and respondent (father); brief relationship.
- Multiple custody orders: ex parte temporary custody (Nov 2016), joint custody memoranda, then permanent custody awarding mother sole custody and supervised visitation for father at Family Abuse Services (FAS) after Oct–Nov 2017 hearing; mother obtained a DVPO in Feb 2017.
- Father had later arrests (DWI, other incidents) and delayed or did not use supervised visitation: did not contact FAS to set up visits until Feb 2019 and followed up in late March 2019.
- Mother filed a termination petition in Dec 2018 (dismissed for improper verification) and refiled Feb 2019 alleging willful abandonment and failure to pay support under N.C.G.S. § 7B-1111(a)(4),(7).
- Trial court found willful abandonment during the six months before the Feb 27, 2019 filing (Aug 27, 2018–Feb 27, 2019), concluding father made no effort to contact or support the child and affirmatively chose not to see him; terminated parental rights.
- Father appealed arguing (1) petition insufficient (should have been dismissed) and (2) findings did not support willful abandonment; Supreme Court affirmed.
Issues:
| Issue | Plaintiff's Argument (A.E.) | Defendant's Argument (Respondent) | Held |
|---|---|---|---|
| 1. Motion to dismiss for failure to state a claim | Petition alleged willful abandonment and failure to pay, cited custody/support orders and factual allegations showing noncompliance — sufficient notice and factual pleading | Petition failed to allege willfulness as required for statutory grounds (esp. re child support and custody noncompliance) | Petition met pleading standard under §7B-1104(6); denial of Rule 12(b)(6) dismissal affirmed |
| 2. Whether clear, cogent, convincing evidence supports willful abandonment under §7B-1111(a)(7) | Father willfully forewent parental duties: did not set up supervised visits, failed to contact child or maternal grandparents, sent no gifts, and ignored opportunities after being served with the first petition | Father lacked opportunity (DVPO, no contact info, some incarceration) and lacked willful intent to relinquish parental duties | Trial court findings supported by clear, cogent, convincing evidence; willful abandonment established; termination affirmed |
Key Cases Cited
- In re Montgomery, 311 N.C. 101 (1984) (standard of proof and review for termination proceedings)
- In re Young, 346 N.C. 244 (1997) (definition of parental abandonment)
- In re N.D.A., 373 N.C. 71 (2019) (six-month determinative period for willful abandonment)
- In re Hardesty, 150 N.C. App. 380 (2002) (pleading sufficiency — allegations must give notice of acts/omissions at issue)
- Pratt v. Bishop, 257 N.C. 486 (1962) (abandonment includes withholding presence, care, support)
- In re C.B.C., 373 N.C. 16 (2019) (willful withholding of love, care, and affection can constitute abandonment)
- In re T.N.H., 372 N.C. 403 (2019) (unchallenged findings are binding on appeal)