805 S.E.2d 299
N.C. Ct. App.2016Background
- Child (Karl) born 2007; parents divorced; Virginia court originally awarded alternating joint custody.
- Petitioner (father) obtained sole custody in 2009 after Respondent failed to return the child.
- North Carolina court (2010) limited Respondent’s visitation to supervised visits until she completed six consecutive monthly visits; she completed that condition after ~18 months and had nine visits between March 2012 and October 2013.
- Petitioner filed to terminate Respondent’s parental rights for abandonment (Mar 2014) and later amended to add neglect (May 2014).
- Respondent paid $1/month court-ordered child support, had limited phone contact (three calls since 2012), requested a visit in April 2014 which Petitioner denied based on the child’s therapist’s recommendation to suspend visits indefinitely.
- Trial court (May 22, 2015) terminated Respondent’s parental rights for neglect (abandonment); Respondent appealed.
Issues
| Issue | Petitioner’s Argument | Respondent’s Argument | Held |
|---|---|---|---|
| Whether Respondent neglected child by abandonment under N.C. Gen. Stat. § 7B-1111(a)(1) | Respondent’s long gaps in contact, last visit Oct 2013, minimal support, and limited calls show willful abandonment | Respondent sporadically visited (9 visits), paid court-ordered support, sought visits in Apr 2014 but was denied by therapist/consent order; lack of contact after denial was not voluntary | Reversed — findings do not support abandonment; lack of contact was involuntary and prior conduct did not evince a settled intent to relinquish parental duties |
Key Cases Cited
- In re Shepard, 162 N.C. App. 215 (discussing appellate standard of review for termination findings) (592 S.E.2d reference omitted)
- In re Humphrey, 156 N.C. App. 533 (defining neglect/abandonment as relinquishing parental claims and duties)
- In re S.R.G., 195 N.C. App. 79 (willfulness requires purpose and deliberation; intent to abandon is a factual question)
- In re Young, 346 N.C. 244 (neglect finding must reflect conditions at time of termination)
- In re T.C.B., 166 N.C. App. 482 (lack of visits may not indicate abandonment when visitation was prohibited by counsel/plan)
- Bost v. Van Nortwick, 117 N.C. App. 1 (visits and support undermined finding of settled purpose to abandon)
- In re C.J.H., 240 N.C. App. 489 (affirming abandonment where respondent failed to visit or consistently support)
- In re Adoption of Searle, 82 N.C. App. 273 (minimal solitary payment insufficient to rebut abandonment finding)