Clark v. Jones

67 N.C. App. 516 | N.C. Ct. App. | 1984

HEDRICK, Judge.

Respondent assigns error to the court’s conclusion of law that she “willfully abandoned” her child.

N.C. Gen. Stat. Sec. 48-2(l)a in pertinent part provides: “For the purpose of this Chapter, an ‘abandoned child’ shall be any child who has been willfully abandoned at least six consecutive months immediately preceding institution of an action or proceeding to declare the child to be an abandoned child.” “A child has been ‘willfully abandoned’ within the meaning of the statute when the conduct of the abandoning parent over the six months period reveals a settled purpose and willful intent to forego all parental duties and obligations and to relinquish all parental claims to the child.” In re Stroud, 38 N.C. App. 373, 374, 247 S.E. 2d 792, 793 (1978) (citing Pratt v. Bishop, 257 N.C. 486, 503, 126 S.E. 2d 597, 609 (1962)). “The word ‘willful’ means something more than an intention to do a thing. It implies doing the act purposely and deliberately.” In re Maynor, 38 N.C. App. 724, 726, 248 S.E. 2d 875, 877 (1978) (emphasis original).

Our examination of the findings of fact made by the trial judge in the instant case reveals that the court made no findings in support of its conclusion that Ms. Jones’ failure to communicate with Antionette was willful, as that term has been defined by our courts. While the court found as a fact that respondent made no attempt to communicate with her child during the critical six month period, this finding alone is insufficient support for the conclusion that her actions reflect “a settled purpose and willful intent ... to relinquish all parental claims to the child.” Because the court’s findings of fact do not support its conclusion of law, the order declaring Ms. Jones to be not a necessary party to the adoption proceedings instituted by petitioners must be vacated.

Our conclusion in this matter is buttressed by an examination of the record, which reveals that Ms. Jones introduced substantial evidence that her actions in not communicating with her daughter were coerced and not willful. Ms. Jones testified that she was married to a man who beat her and who threatened her child and other members of her family. She further testified that her repeated efforts to separate from her husband were unsuccessful, and that she was able to return safely to the area only after her husband was taken into custody by federal authorities in August 1982. Her testimony was corroborated by other witnesses. The court made no finding of fact regarding this largely uncontra-dicted evidence which was critical to the issue whether Ms. Jones willfully abandoned Antionette. Nor did the trial judge make any finding regarding the evidence that the respondent and Mr. Clark were negotiating an arrangement for the respondent to resume visitation at the time the petition was filed.

Our disposition of this case makes it unnecessary for us to discuss respondent’s remaining assignments of error.

The order of the Superior Court entered on 17 January 1983 is

Vacated.

Judges WHICHARD and JOHNSON concur.