IN THE MATTER OF: A.G.D. and A.N.D.
No. 258A19
IN THE SUPREME COURT OF NORTH CAROLINA
Filed 1 May 2020
ERVIN, Justice.
Appeal pursuant to
No brief filed for petitioner-appellee mother.
Edward Eldred for respondent-appellant father.
Respondent-father Aaron D. appeals from orders1 entered by the trial court terminating his parental rights in his minor children A.G.D. and A.N.D.2 on the grounds of willful abandonment. After careful consideration of respondent-father‘s challenge to the trial court‘s termination orders in light of the record and the
applicable law, we conclude that the trial court‘s termination orders should be affirmed.
Petitioner Amber D. and respondent-father were married in April 2008, with Amy having been born to the parents in 2008 and with Andy having been born to the parents in 2011. The parties separated in March 2013 after Amy revealed that respondent-father had committed repeated sexual assaults against her. Along with a number of other individuals, respondent-father was subsequently charged with having committed multiple criminal acts of sexual abuse in the state and federal courts, including crimes involving child pornography. On 27 May 2014, an order was entered granting the mother sole legal and physical custody of the children, with respondent-father being ordered to have no contact with them in the absence of a further order of the court.3 A judgment granting an absolute divorce between the parents was entered in July 2014.
On 26 June 2018, the mother filed petitions seeking to have respondent-father‘s parental rights in the children terminated on the grounds that he had willfully failed to pay any portion of the cost of the children‘s care and that he had willfully abandoned the children. See
In seeking to persuade us to grant relief from the trial court‘s termination orders, respondent-father argues that the trial court erred by determining that his parental rights in the children were subject to termination on the grounds of willful abandonment in light of the fact that he had been “prohibited . . . from having any contact with his children.” According to respondent-father, “it was not within [his] power to display his love and affection for his children because he was court-ordered not to contact them.” In respondent-father‘s view, the trial court‘s reliance upon his failure to seek relief from the earlier custody and visitation order was misplaced given that the record contained no evidence tending to show that he had the ability to make such a filing or that there had been “any change of circumstances warranting the filing of” such a motion, citing Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253 (2003) (stating that a party is only entitled to seek to have a prior custody order modified in the event that “there has been a substantial change in circumstances and that the change affected the welfare of the child“), with it “beg[ging] belief” that respondent-father “could have filed a custody motion every six months for four years.” As a result, since respondent-father “was court-ordered
“We review a trial court‘s adjudication under
parental claims to [the child],” In re N.D.A., 373 N.C. 71, 79, 833 S.E.2d 768, 774 (2019) (quoting In re D.M.O., 250 N.C. App. 570, 573, 794 S.E.2d 858, 861-62 (2016)), with a parent having abandoned his or her child for purposes of
We further note that “[o]ur precedents are quite clear—and remain in full force—that ‘[i]ncarceration, standing alone, is neither a sword nor a shield in a termination of parental rights decision.‘” In re M.A.W., 370 N.C. 149, 153, 804 S.E.2d 513, 517 (2017) (second alteration in original) (quoting In re P.L.P., 173 N.C. App. 1, 10, 618 S.E.2d 241, 247 (2005), aff‘d per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006)). Although “a parent‘s options for showing affection while incarcerated are greatly limited, a parent will not be excused from showing interest in [the] child‘s welfare by whatever means available.” In re C.B.C., 373 N.C. 16, 19-20, 832 S.E.2d 692, 695 (2019) (quoting In re D.E.M., 257 N.C. App. 618, 621, 810 S.E.2d 375, 378 (2018)). As a result, our decisions concerning the termination of the parental rights of incarcerated persons require that courts recognize the limitations for showing love, affection, and parental concern under which such individuals labor while simultaneously requiring them to do what they can to exhibit the required level of concern for their children. In re K.N., 373 N.C. 274, 283, 837 S.E.2d 861, 867-68 (2020) (stating that “the extent to which a parent‘s incarceration or violation of the terms and conditions of probation support a finding of neglect depends upon an analysis of the relevant facts and circumstances, including the length of the parent‘s incarceration“).
In the course of determining that respondent-father‘s parental rights in the children were subject to termination on the grounds of willful abandonment, the trial court found as a fact that:
5. [Respondent-father] was not present, but represented by Adam E. Anderson, Esq. [Respondent-father‘s] Attorney informed the Court that he met with [respondent-father], but was unable to ascertain his wishes as to whether he wished to contest this action or not. [Respondent-father] also indicated he did not want to be present due to wanting to focus his efforts on “trial preparation” for his upcoming criminal matters. [Respondent-father‘s] Attorney also reached out to [respondent-father‘s] Federal Attorney, Anthony Martinez, who spoke with [respondent-father] and indicated that he was also unable to ascertain whether [respondent-father] wished to contest this matter. [Respondent-father‘s] Attorney made a motion to continue this matter, which
. . . .
10. Respondent[-father] has not participated in the care of the [children] in the last six (6) months and has not had any meaningful interaction with the [children] since March 8, 2013.
. . . .
12. Respondent[-father] has pending criminal charges for child related sex offenses which have prevented and prevent him from being a meaningful part of the [children‘s] live[s].
13. [Amy] was four (4) years old when she disclosed that she was the victim of a sexual assault by her father. Upon disclosure, [the mother] made [respondent-father] leave the home and reported these allegations to the Ashe County Sheriff‘s Department, who started an investigation. [Respondent-father] was charged with fourteen (14) counts of sexual assault in state court and eight (8) charges in Federal Court. [The mother] did not know the exact names of the charges but did testify that they related to these allegations and other sexual acts including child pornography.
14. The Federal investigation also led to [respondent-father] being charged along with others for sexual acts including child pornography. . . .
15. During the time these acts were committed, [Amy] was two to four (2-4) years old. Her brother, [Andy], was a newborn and nonverbal at the time.
. . . .
18. [Respondent-father] has not seen or spoken to the children since March 8, 2013. About eighteen (18) months after this date, he contacted the [mother] requesting to see the children, but this is the only attempt he has made to contact the children.
. . . .
22. . . . [The children] have no bond with [respondent-father. Amy] refers to [respondent-father] as “Aaron“, not “dad“.
. . . .
24. The [mother] was granted sole legal and physical custody of the children in 2014. [Respondent-father] was not allowed further visitation “absent further orders of the Court.” [Respondent-father] has taken no action to file anything with the Court seeking visitation with the children.
25. [Respondent-father] has not made any attempt to contact or see the [children] for the six (6) months next preceding the filing of this action and has not had any meaningful interaction with the [children] since March of 2013.
26. [Respondent-father] has willfully abandoned the juvenile[s] for at least six (6) months immediately preceding the filing of this action. The actions of [respondent-father] manifest a willful determination to forego all parental duties and relinquish all parental claims regarding the minor children. This was done with purpose and deliberation.
27. [Respondent-father‘s] attorney argued that the actions of [respondent-father] were not willful due to his incarceration. The Court‘s findings of willfulness are not based on incarceration alone. Despite his incarceration, [respondent-father] is not excused from showing an interest in his children‘s welfare. The Court has considered other actions that could have been taken by the [respondent-father]. He could have filed a motion for contact or visitation with the Court in the custody action.
28. [Respondent-father] has at all times been able to ascertain the whereabouts of the [children.] [The mother] testified that [respondent-father‘s] Federal Attorney came to her home a few months ago to ask questions regarding [respondent-father‘s] criminal case.
In its termination orders, the trial court found7 as a fact that respondent-father‘s trial counsel “met with [respondent-father]” and “was unable to ascertain his wishes as to whether he wished to contest this action or not.” In addition, the trial court found that respondent-father‘s trial counsel had “reached out” to the attorney responsible for representing respondent-father in connection with his pending federal criminal cases, who “was also unable to ascertain whether [respondent-father] wished to contest this matter.” The trial court further found that Amy “was four (4) years old when she disclosed that she was the victim of a sexual assault by” respondent-father,8 who “was charged with fourteen (14) counts of sexual assault in state court and eight (8) charges in [f]ederal court.” The trial court found that the mother “was granted sole legal and physical custody of the” children by means of an order entered in the District Court, Ashe County, with respondent-father not being “allowed further visitation ‘absent further orders of the Court‘” The trial court also found that respondent-father “has not participated in the care of the [children] in the past six (6) months,” “has not had any meaningful interaction with the [children] since March 8,
2013,” “has taken no action to file anything with the Court seeking visitation with the children,” and “has not made any attempt to contact or see the [children] for the six (6) months next preceding the filing of this action and has not had any meaningful interaction with the [children] since March of 2013.” The trial court found that, approximately eighteen months after March 8, 2013, respondent-father had “contacted [petitioner-mother] requesting to see the children,” with this having been “the only attempt he has made to” do so. In response to respondent-father‘s contention that “the actions of [respondent-father] were not willful due to his incarceration,” the trial court found that, “[d]espite his incarceration, [respondent-father] is not excused from showing an interest in his children‘s welfare,” that “[t]he Court ha[d] considered other actions that could have been taken by” respondent-father, and that respondent-father “could have filed a motion for contact or visitation with the Court in the custody action.” Finally, the trial court found that respondent-father “ha[d] at all times been able to ascertain the whereabouts of the [children]” and that the attorney that represented respondent-father in his federal criminal cases “came to [petitioner-mother‘s] home a few months ago to ask questions regarding [respondent-father‘s] criminal case.” Based upon these findings of fact, the trial court concluded that respondent-father‘s actions and inactions “manifest a willful determination to forego all parental duties and relinquish all parental claims regarding the” children and that “[t]his was done with purpose and deliberation.”
A careful review of the termination orders reveals that the trial court did not conclude that respondent-father‘s parental rights in the children were subject to termination on the grounds of abandonment solely because he had failed to make direct contact with them in violation of the custody and visitation order. On the contrary, the trial court specifically noted that respondent-father was “not excused from showing an interest in his children‘s welfare” because of his incarceration and found as a fact that, among other things, the only attempt that respondent-father had made to contact the children had occurred when he communicated with petitioner-mother about eighteen months after his last “meaningful” contact with them. In other words, the trial court found that respondent-father had, with one exception, done nothing to maintain contact with the mother, with whom the children lived and who would know
determination that a parent had abandoned his children on the grounds that the trial court‘s findings showed that, “during the relevant six-month period, respondent-father ‘made no effort’ to remain in contact with his children or their caretakers and neither provided nor offered anything toward their support“), and distinguishable from In re D.E.M., 257 N.C. App. at 621, 810 S.E.2d at 379 (holding that the trial court had erred by finding that an incarcerated parent‘s parental rights in his child were subject to termination for abandonment based, in part, on the fact that “the trial court‘s findings . . . do not address, in light of his incarceration, what other efforts [the parent] could have been expected to make to contact [the other parent] and the juvenile“).
Although the custody and visitation order that was entered at petitioner-mother‘s request did preclude respondent-father from having direct contact with the children, it did not place any other limitation upon his ability to interact with or show love, affection, and parental concern for the children.10 The trial court‘s findings of
fact reflect that respondent-father had the legal right and practical ability to contact the mother directly or through intermediaries for the purpose of inquiring about the children‘s welfare and asking that she convey his best wishes to them, with nothing in the custody and visitation order serving to prohibit him from doing so. Similarly, nothing in the custody and visitation order prohibited respondent-father from using other persons as a vehicle for the indirect communication of his love, affection, and parental concern for the children. In spite of the fact that respondent-father had the ability to make such inquiries or to request others to do so, the trial court‘s findings of fact reflect that respondent-father did not ever make contact with petitioner-mother to ask permission to have contact with the children or to otherwise express any love, affection, or parental concern for them during the six-month period prescribed in
In seeking to persuade us to reach a different result, respondent-father argues, in essence, that the order prohibiting him from having contact with the children stood as an absolute barrier to his ability to show love, affection, and parental concern for them and that this fact should preclude a finding of abandonment for purposes of
A decision to overturn the trial court‘s termination orders in this case would also run afoul of our decisions concerning the manner in which termination of parental rights cases involving incarcerated individuals should be decided. As we have already noted, the fact of incarceration is neither a sword nor a shield for purposes of a termination of parental rights proceeding. Although the fact that he was incarcerated and subject to an order prohibiting him from directly contacting the children created obvious obstacles to respondent-father‘s ability to show love, affection, and parental concern for the children, it did not render such a showing completely impossible. In spite of the fact that other options for showing love, affection, and parental concern for the children remained
A decision to overturn the trial court‘s termination orders would also preclude a trial court from determining that a parent who has been accused of sexually abusing one of his children and incarcerated for a lengthy period of time prior to trial had abandoned his children solely because the parent‘s spouse and representatives of the State took action to protect the family from any risk that the incarcerated parent would inflict further harm upon the members of the family. A decision to reach the result that respondent-father contends to be appropriate in this case would raise serious questions about the extent, if any, to which an incarcerated individual subject to limitations upon his ability to contact a child that he had allegedly abused could ever be found to have abandoned his or her children for purposes of
AFFIRMED.
Justice EARLS dissenting.
This case is yet another example of bad facts making bad law. The majority‘s decision undermines parental rights and expands the definition of abandonment because to do otherwise, in the majority‘s view, would “raise serious questions about the extent, if any, to which an incarcerated individual subject to limitations upon his ability to contact a child that he had allegedly abused could ever be found to have abandoned his or her children for purposes of
As the majority acknowledges, the trial court‘s order shows that the judgment terminating respondent‘s parental rights was based on findings that respondent did not have any contact with the children since 2013, that he did not attempt to contact or see them in the six months preceding the termination petition, and that he did not file a motion in the civil custody case to modify the no-contact provisions of the 2014 custody order.1 None of these findings support the conclusion that respondent willfully abandoned his children.
First, respondent‘s mere lack of contact does not demonstrate that he had a purposeful, deliberative, and manifest willful determination to forego all parental duties and relinquish all parental claims to Amy and Andy, because he was prohibited by court order from contacting the children. Cf. In re T.C.B., 166 N.C. App. 482, 486-87, 602 S.E.2d 17, 19-20 (2004) (holding that a trial court‘s conclusion of willful abandonment was not supported by its findings regarding lack of visits, because a protection plan between DSS and the mother prohibited visitation with the respondent-father, and because the
Second, the fact that respondent did not file a motion seeking to modify the no-contact provisions of the civil custody order similarly does not demonstrate that he willfully abandoned his children. Filing a motion to modify custody or visitation is evidence that a parent does not have a willful determination to forego all parental duties and relinquish all parental claims to a child. See, e.g., In re D.T.L., 219 N.C. App. 219, 222, 722 S.E.2d 516, 518 (2012) (“Having been prohibited by court order from contacting either petitioner or the juveniles, respondent‘s filing of a civil custody action clearly establishes that he desired to maintain custody of the juveniles and cannot support a conclusion that he had a willful determination to forego all parental duties and relinquish all parental claims to the juveniles.“). However, the trial court‘s findings do not indicate that respondent could have successfully modified the civil custody order with such a motion. Actual modification of custody or visitation requires a parent to show a substantial change in circumstances affecting the welfare of the child. Shipman v. Shipman, 357 N.C. 471, 473, 586 S.E.2d 250, 253 (2003) (“It is well established in this jurisdiction that a trial court may order a modification of an existing child custody order between two natural parents if the party moving for modification shows that a ‘substantial change of circumstances affecting the welfare of the child’ warrants a change in custody.” (quoting Pulliam v. Smith, 348 N.C. 616, 619, 501 S.E.2d 898, 899 (1998))); Charett v. Charett, 42 N.C. App. 189, 193, 256 S.E.2d 238, 241 (1979) (applicable here because “[c]ustody and visitation are two facets of the same issue.“). Given his continued incarceration on pending charges that included child pornography and sexual offenses against Amy, respondent could not show the required substantial change in circumstances necessary to modify the civil custody order. Respondent‘s failure to file a meritless motion in the civil custody case thus does not support the trial court‘s conclusion that he willfully abandoned his children.
To be sure, there may be other facts the petitioner could establish and the trial court could find that would support a conclusion that respondent willfully abandoned his children or that another ground for termination of his parental rights exists in this case. But our ruling today should be based solely on the facts that have been found by the trial court in its order terminating respondent‘s parental rights on the ground of willful abandonment. See In re C.B.C., 373 N.C. 16, 19, 832 S.E.2d 692, 695 (2019) (“We review a trial court‘s adjudication under
The majority makes two additional mistakes on its path to affirming the trial court. First, the trial court‘s findings concerning respondent‘s attorneys being “unable to ascertain” whether respondent wished to contest the termination somehow become support for the conclusion that respondent manifested a willful determination to forgo all parental duties and relinquish all parental claims to his children. However accurate the attorneys’ statements may have been, those statements are not competent evidence
It remains true that the fact of a parent‘s incarceration neither requires a court to terminate the incarcerated parent‘s rights nor prevents a court from doing so. See In re M.A.W., 370 N.C. 149, 153, 804 S.E.2d 513, 517 (2017) (“Our precedents are quite clear—and remain in full force—that ‘[i]ncarceration, standing alone, is neither a sword nor a shield in a termination of parental rights decision.‘” (alteration in original) (quoting In re P.L.P., 173 N.C. App. 1, 10, 618 S.E.2d 241, 247 (2005))). Indeed, this Court recently held that there were sufficient facts to support a finding of abandonment where the order barring the incarcerated father from having any contact with the minor child was merely a temporary custody order, and where there was evidence in the record that the father had the capacity to seek modification of the custody order and failed to do so because he felt he was not able to be a father to his child. See In re E.H.P., 372 N.C. 388, 394, 831 S.E.2d 49, 53 (2019) (“A temporary custody order is by definition provisional, and the order at issue here expressly contemplated the possibility that the no-contact provision would be modified in a future order.“); see also In re C.B.C., 373 N.C. at 19-23, 832 S.E.2d at 695-97 (holding that abandonment was established despite the fact that respondent had been incarcerated for approximately three of the relevant six months before the filing of the petition because respondent made no attempt to contact the child while not incarcerated and there was no court order barring him from doing so).
In this case, however, the record is silent as to whether the respondent could successfully modify the court orders that prevented him from having any contact whatsoever with his children. Thus, we are confronted with a situation similar to the situation in In re K.N., 373 N.C. 274, 837 S.E.2d 861 (2020). In that case, we held that
respondent‘s incarceration, by itself, cannot serve as clear, cogent, and convincing evidence of neglect. Instead, the extent to which a parent‘s incarceration or violation of the terms and conditions of probation support a finding of neglect depends upon an analysis of the relevant facts and circumstances, including the length of the parent‘s incarceration. The trial court‘s findings do not contain any such analysis.
Id. at 283, 837 S.E.2d at 867-68. Likewise, the bare bones order in this case does not provide sufficient facts to support the conclusion that respondent willfully abandoned his children. The trial court‘s findings do little more than establish that at the time of the hearing respondent was in jail awaiting trial, under a court order not to contact his children. There are therefore few facts upon which to distinguish this case from In re K.N.
Accordingly, the trial court‘s findings do not support its conclusion that the ground of willful abandonment exists to terminate respondent‘s parental rights. Willful abandonment was the only basis upon which the trial court terminated respondent‘s parental rights to the minor children, and I would therefore vacate the trial court‘s order and remand for further proceedings.