257 N.C. App. 618
N.C. Ct. App.2018Background
- Alberto is the biological father of D.E.M. ("Danny"); Beryl is the mother.
- On Aug 25, 2015 Beryl filed a petition to terminate Alberto’s parental rights under N.C.G.S. § 7B-1111(a)(7) (willful abandonment), alleging no contact since Feb 2005 and no consistent support.
- The trial court entered an order on Apr 26, 2017 terminating Alberto’s parental rights, citing lack of contact, no financial support, and significant incarceration.
- Alberto appealed, arguing the trial court’s findings were inadequate to show willful abandonment during the six months immediately preceding the petition.
- Alberto testified he was incarcerated during the relevant six-month period, had written letters to the child while in prison, and that Beryl withheld contact information.
Issues
| Issue | Plaintiff's Argument (Beryl) | Defendant's Argument (Alberto) | Held |
|---|---|---|---|
| Whether grounds existed to terminate parental rights for willful abandonment under § 7B-1111(a)(7) | Alberto abandoned Danny: no contact, no financial support, long-term absence | Incarceration during the six-month window and efforts (letters) undermine a finding of willful abandonment; trial court failed to make specific six-month findings | Vacated and remanded: trial court's findings were inadequate to show willful abandonment during the six-month period and mixed facts/conclusions in violation of Rule 52 |
| Whether the trial court complied with Rule 52 (separate findings of fact and conclusions of law) | Order adequate to support termination | Order improperly mixes findings and conclusions; lacks dates and specificity | Vacated and remanded for reissued findings and conclusions in compliance with Rule 52 |
| Whether incarceration alone can establish willful abandonment | N/A (relied on absence and choices leading to incarceration) | Incarceration alone is not dispositive; court must consider limitations incarceration imposes on demonstrating parental interest | Court reiterated incarceration is not dispositive; trial court failed to consider limitations and make related findings |
| Whether appellate court should consider additional evidence on remand | N/A | Trial court should be allowed discretion to hear more evidence | Remanded and trial court has discretion whether to receive additional evidence |
Key Cases Cited
- In re D.H., 232 N.C. App. 217 (discussing adjudication vs. disposition stages in TPR proceedings)
- In re N.T.U., 234 N.C. App. 722 (one statutory ground suffices for termination)
- In re Huff, 140 N.C. App. 288 (standard of review: findings must be supported by clear, cogent, and convincing evidence)
- In re Adoption of Searle, 82 N.C. App. 273 (definition and mens rea of abandonment)
- In re McLemore, 139 N.C. App. 426 (consideration of financial and emotional contributions in abandonment analysis)
- In re Adoption of Maynor, 38 N.C. App. 724 (incarceration alone insufficient to prove willful abandonment)
- In re J.L.K., 165 N.C. App. 311 (incarcerated parents must show interest by available means)
- Whittington v. Hendren, 156 N.C. App. 364 (same principle regarding incarcerated parents)
- Pineda-Lopez v. N.C. Growers Ass’n, 151 N.C. App. 587 (Rule 52 requires separation of findings and conclusions)
- In re T.P., 197 N.C. App. 723 (Rule 52 applies to TPR orders)
- In re F.G.J., 200 N.C. App. 681 (remand guidance; trial court discretion to receive additional evidence)