263 N.C. App. 481
N.C. Ct. App.2019Background
- Child I.R.L. (Ivey) born Feb 2014; parents were never married; Mother had sole custody since birth.
- Parents cohabited Jan–Mar 2015; Father forced Mother and Ivey out on 31 Mar 2015 and had no contact thereafter.
- Mother obtained a one-year domestic violence protective order (DVPO) against Father in Apr 2016 (effective until Apr 2017) that prohibited contact with Mother but did not expressly bar contact with minor children.
- Mother filed a petition to terminate Father’s parental rights in Mar 2017 alleging failure to establish paternity, failure to pay support, and abandonment; Father filed a pro se complaint for visitation the same month.
- Trial court terminated Father’s parental rights in Feb 2018, finding abandonment and failure to pay support and concluding termination was in the child’s best interests; Father appealed.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether Father abandoned the child under N.C. Gen. Stat. § 7B-1111(a)(7) | Father has not seen or contacted child since Mar 2015 and provided no substantial support, constituting willful abandonment. | Lack of contact and support was not willful because a DVPO (Apr 2016–Apr 2017) prohibited contact with Mother, who had custody; Father filed for visitation before DVPO expired. | Court reversed/remanded: trial court failed to make required findings on willfulness; findings insufficient to establish abandonment. |
| Whether Father’s rights could be terminated for willful failure to pay support under N.C. Gen. Stat. § 7B-1111(a)(4) | Father failed to provide substantial financial support for the child for more than one year. | Mother’s petition did not plead a willful failure to pay as required by an enforceable support order; Father lacked notice of that statutory ground. | Court reversed: trial court made no findings that a support order existed or that failure to pay was willful; petition did not put Father on notice under § 7B-1111(a)(4). |
Key Cases Cited
- In re C.J.H., 240 N.C. App. 489 (discussing standards for findings in TPR proceedings)
- In re Williamson, 91 N.C. App. 668 (findings supported by competent evidence are binding)
- In re S.N., 194 N.C. App. 142 (appellate review of conclusions of law in TPR cases)
- In re Young, 346 N.C. 244 (defining abandonment as willful relinquishment of parental duties)
- Pratt v. Bishop, 257 N.C. 486 (parental failure to support or visit can constitute abandonment)
- In re D.R.B., 182 N.C. App. 733 (willfulness is required element for abandonment findings)
- In re T.M.H., 186 N.C. App. 451 (vacating TPR where trial court failed to find willfulness)
- In re Roberson, 97 N.C. App. 277 (§ 7B-1111(a)(4) requires an enforceable support order)
- In re B.L.H., 190 N.C. App. 142 (respondent must have notice of the statutory ground alleged for TPR)