In re: D.E.M.Â
254 N.C. App. 401
| N.C. Ct. App. | 2017Background
- Child D.E.M., born Nov. 2011, was placed in paternal grandparents’ custody after a May 2013 incident; grandparents received primary legal and physical custody by order entered Nov. 14, 2013.
- Parents were granted supervised then unsupervised visitation; Mother visited once (Dec. 22, 2013) and did not exercise visitation thereafter.
- Grandparents filed a termination petition May 29, 2014; a trial court terminated parental rights in March 2015 but this Court vacated that order for lack of petitioner standing on Mar. 1, 2016.
- Grandparents filed a new termination petition Mar. 8, 2016 alleging abandonment and failure to support; trial court held a hearing Sept. 13, 2016 and entered an amended termination order Oct. 10, 2016.
- Trial court adjudicated willful abandonment (N.C. Gen. Stat. § 7B-1111(a)(7)) and failure to pay support (a(4)); it found termination was in the child’s best interest because grandparents intended to adopt and the GAL recommended termination. Mother appealed.
Issues
| Issue | Petitioners' Argument | Mother's Argument | Held |
|---|---|---|---|
| Whether Mother willfully abandoned child under N.C. Gen. Stat. § 7B-1111(a)(7) (six months before petition) | Mother made no efforts to visit, contact, or support D.E.M. during the relevant six-month period and for years prior; prior nonvisitation supports an inference of a settled purpose to forego parental duties. | Mother lacked ability to visit during the relevant period because a prior termination order (later vacated) divested her of parental and visitation rights; without a stay or court-ordered visitation under § 7B-1003, her noncontact was not willful. | Affirmed: trial court’s findings supported conclusion of willful abandonment; conduct outside six months relevant to credibility and intent; Mother failed to attempt available means of contact/support. |
| Whether failure to pay support (N.C. Gen. Stat. § 7B-1111(a)(4)) supports termination | Parents never paid support despite being employed and able to do so; nonpayment during statutory period supports termination. | Mother argued options were limited and contended prior orders and circumstances affected her ability to pay; (on appeal Mother focused primarily on abandonment issue). | Court relied on abandonment ground and declined to review this ground in depth because at least one ground (abandonment) was supported. |
| Whether termination is in the child’s best interest (disposition under N.C. Gen. Stat. § 7B-1110(a)) | Grandparents have raised child since 2013, child is thriving, grandparents intend to adopt, and GAL recommends termination to allow adoption. | Mother argued trial court misunderstood adoption law and that grandparents may lack standing to adopt absent a placement under Chapter 48; she contends termination would render the child a legal orphan. | Affirmed: trial court did not err — statute allows waiver of placement requirement for cause and facts supported likelihood of adoption and best-interest determination. |
| Whether trial court improperly relied on pre-six-month conduct | Petitioners: prior long-term noncontact is probative of intent during the six-month window and relevant to credibility. | Mother: reliance on conduct outside the six-month window is improper where she had no legal rights during the six months because of the earlier termination order. | Rejected: appellate court held court may consider conduct outside the six-month period to assess credibility and intent; findings supported abandonment conclusion. |
Key Cases Cited
- In re C.J.H., 240 N.C. App. 489 (2015) (trial court may consider conduct outside the six-month window to assess a parent’s credibility and intent)
- Whittington v. Hendren (In re Hendren), 156 N.C. App. 364 (2003) (incarceration or limited means does not excuse a parent’s obligation to show interest by whatever means available)
- In re Young, 346 N.C. 244 (1997) (definition of abandonment as willful relinquishment of parental duties)
- In re R.R., 180 N.C. App. 628 (2006) (parent’s failure to provide presence, love, and care by available means can support abandonment)
- In re D.R.F., 204 N.C. App. 138 (2010) (dispositional best-interest factors under § 7B-1110(a))