250 N.C. App. 570
N.C. Ct. App.2016Background
- Child (David) born 2007; parents separated 2010; father obtained permanent legal and physical custody in 2011 with court-ordered visitation for mother.
- Mother struggled with substance abuse and was incarcerated multiple times; during the six months before the termination petition (28 Nov 2014–28 May 2015) she was largely in custody with only 33 days outside custody.
- Father filed a petition to terminate mother’s parental rights on 28 May 2015 alleging willful abandonment under N.C. Gen. Stat. § 7B-1111(a)(7).
- At the termination hearing, evidence conflicted: father testified mother made little or no contact during the relevant period; mother testified she repeatedly tried to call, text, and mail letters but father did not respond or allegedly blocked visits.
- Trial court found mother failed to exercise court-ordered visitation and contact during the determinative six months and concluded willful abandonment and best interests supported termination.
- Court of Appeals vacated and remanded, holding the trial court’s findings were insufficient on willfulness and failed to resolve material evidentiary conflicts (incarceration, addiction, ability to contact child, and father’s receptivity).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was statutory ground to terminate mother’s parental rights for willful abandonment under N.C. Gen. Stat. § 7B-1111(a)(7) | Father: mother willfully abandoned child by failing to exercise visitation or contact during 6 months before petition | Mother: incarceration, addiction, and father’s noncooperation limited her ability to contact or visit; she attempted contact | Vacated and remanded: trial court’s findings were inadequate to show purposeful, deliberative willfulness; material conflicts unresolved |
| Whether trial court properly resolved conflicts about mother’s attempts to contact child while incarcerated | Father: testimony shows no meaningful effort by mother | Mother: testified she called, texted, mailed letters, and was sometimes blocked | Remanded for further findings; conflicts must be resolved and trial court may receive more evidence |
| Whether incarceration and addiction may negate a finding of willfulness for abandonment | Father: such circumstances don’t automatically preclude finding willfulness | Mother: incarceration and addiction limit opportunities to maintain relationship and may excuse lack of contact | Court: incarceration/addiction are relevant and may explain noncontact; trial court must expressly consider these limitations when finding willfulness |
| Whether guardian ad litem failed statutory duties | Mother: GAL did not adequately participate (argued) | Father: GAL prepared report and participated; timing of attendance unclear | Court: record unclear; emphasized GAL and court must follow statutory duties but did not reverse on GAL issue; primary remedy is remand for adequate findings |
Key Cases Cited
- Quick v. Quick, 305 N.C. 446 (trial court must make specific ultimate factual findings)
- In re Young, 346 N.C. 244 (willful abandonment requires purposeful, deliberate relinquishment of parental duties)
- In re D.J.D., 171 N.C. App. 230 (incarceration does not automatically preclude abandonment but limited opportunities are relevant)
- In re B.S.O., 234 N.C. App. 706 (comparative discussion of incarceration/deportation and necessity to consider ability to communicate/support)
- In re S.R.G., 195 N.C. App. 79 (findings must show more than failure to fulfill parental obligations; consider addiction as alternative explanation)