Termination of Parental Rights--abandoment--alcoholism and imprisonment--no efforts to
contact or support child
A termination of parental rights action was remanded where the trial court concluded that
petitioner had demonstrated neither of the statutory grounds warranting termination and did not
reach the best interests of the child under the two step process provided by Chapt. 7A at the time,
but the court's conclusion that respondent did not willfully abandon his child was erroneous in
that the court's findings indicated that respondent provided no financial or emotional support and
made no contact with his child during the relevant six months. Although the record is replete with
evidence that respondent suffered from alcoholism, was incarcerated for some time, and had
trouble maintaining steady employment, the court's findings do not provide an explanation
inconsistent with willfulness within the meaning of Bost v. Van Nortwick, 117 N.C. App. 1. As
in In re Harris, 87 N.C. App. 179, one ineffectual attempt at contact during the relevant six-month
period would not preclude otherwise clear willful abandonment.
Law Office of Elizabeth T. Hodges, by Elizabeth T. Hodges and
K. Mitchell Kelling, for petitioner-appellant.
Charles W. Porter, III, for respondent-appellee.
LEWIS, Judge.
Petitioner Jeni Carder and respondent Samuel Lee Benton were
married in June 1991 and separated on 21 September 1992. Twins
were born of this marriage, Kayla Ann McLemore and Taylor Lynn
McLemore, on 6 May 1993. The parties were divorced in 1994, and
petitioner was thereafter granted permanent custody of the minor
children. At the time of this action, respondent had not seen the
children since June 1993. In March 1994, respondent was ordered to
pay child support in the amount of $131.80 per week for Taylor Lynn
McLemore; petitioner has received no payments. At the time of thisaction, the last time respondent had provided financial assistance
for his children was in June 1993, when he gave petitioner $200.
Before that, respondent had contributed approximately $150 for the
support of his children.
On 20 August 1997, petitioner filed a petition to terminate
the parental rights of respondent with regard to Taylor Lynn
McLemore. Only that petition is presently before us on appeal;
thus, we only address respondent's parental rights in regard to
Taylor and not Kayla. Among petitioner's allegations relevant to
this appeal are that respondent failed without justification to pay
any child support and that respondent willfully abandoned the child
for at least six months preceding the filing of the petition to
terminate parental rights.
At the time the petition in this case was filed, Chapter 7A of
the North Carolina General Statutes governed termination of
parental rights, providing for a two-stage termination proceeding.
First, at the adjudication stage, the petitioner must demonstrate
by clear, cogent and convincing evidence that one or more of the
grounds warranting termination, as set forth in G.S. 7A-289.32,
exist. N.C. Gen. Stat. § 7A-289.30(e). Upon a finding that
grounds for terminating parental rights are present, the court
moves to the disposition stage, determining whether the termination
of parental rights is in the best interest of the child. N.C. Gen.Stat. § 7A-289.31(a). The standard for review in termination of
parental rights cases is whether the court's findings of fact are
supported by clear, cogent and convincing evidence and whether
these findings, in turn, support the conclusions of law. In reBallard, 63 N.C. App. 580, 585, 306 S.E.2d 150, 153 (1983),
modified on other grounds, 311 N.C. 708, 319 S.E.2d 227 (1984).
G.S. 7A-289.32 provides in relevant part:
The court may terminate the parental rights upon a
finding of one or more of the following:
. . .
(5) One parent has been awarded custody of the
child by judicial decree, or has custody by
agreement of the parents, and the other parent
whose parental rights are sought to be
terminated has for a period of one year or
more next preceding the filing of the petition
willfully failed without justification to pay
for the care, support and education of the
child, as required by said decree or custody
agreement.
. . .
(8) The parent has willfully abandoned the
child for at least six consecutive months
immediately preceding the filing of the
petition. . . .
(Emphasis added.) The court in this case concluded that petitioner
demonstrated neither of these statutory grounds warranting
termination, and thus, did not reach the question of the best
interests of the child and denied the petitioner's motion. Based
upon our examination of the order, we reverse the trial court's
order with regard to Taylor.
Because we hold the trial court's findings support the court's
conclusion that respondent willfully abandoned his child, we need
only address that statutory ground. The trial court here concluded
respondent's absence from his child's life was not willful under
G.S. 7A-289.32(8) "because of the substance abuse and alcohol
issues of the father within the meaning of Bost v. Van Nortwick andthe incarceration of the father within the meaning of In re Ha
rris
and In re Maynor" (citations omitted).
"Abandonment implies conduct on the part of the parent which
manifests a willful determination to forego all parental duties and
relinquish all parental claims to the child." In re Young, 346
N.C. 244, 251, 485 S.E.2d 612, 617 (1997). "It has been held that
if a parent withholds his presence, his love, his care, the
opportunity to display filial affection, and [willfully] neglects
to lend support and maintenance, such parent relinquishes all
parental claims and abandons the child." Pratt v. Bishop, 257 N.C.
486, 501, 126 S.E.2d 597, 608 (1962). The word "willful"
encompasses more than a mere intention, but also purpose and
deliberation. In re Adoption of Searle, 82 N.C. App. 273, 275, 346
S.E.2d 511, 514 (1986).
In our opinion, the trial court here interpreted Bost, Harris
and Maynor as allowing the fact of a respondent's alcohol abuse and
incarceration, standing alone, to negate a finding of willfulness
under the statute. We do not agree. In Bost, we held the trial
court erred in concluding the respondent willfully abandoned his
children for a period of at least six consecutive months preceding
the filing of the petition pursuant to G.S. 7A-289.32(8). Bost v.
Van Nortwick, 117 N.C. App. 1, 18, 449 S.E.2d 911, 920-21 (1994).
As to the statutory factor of willful abandonment, Bost
requires the court to consider, during the relevant six month
period, the financial support respondent has provided to the child,
as well as the respondent's emotional contributions to the child. In addressing respondent's financial contributions, the Bost court
noted, "'[A] mere failure of the parent of a minor child in the
custody of a third person to contribute to its support does not in
and of itself constitute abandonment. Explanations could be made
which would be inconsistent with a [willful] intent to abandon.'"
Id. at 18, 449 S.E.2d at 921 (quoting Pratt v. Bishop, 257 N.C.
486, 501-02, 126 S.E.2d 597, 608 (1962)). In addressing the second
consideration of emotional support, the court must consider a
respondent's display of "love, care and affection" for his
children. Id.
When considering the respondent's financial support as part of
its abandonment analysis, the Bost court indicated that
respondent's severe alcoholism and financial inattentiveness due to
his lack of gainful employment negated a finding of willful
abandonment. It was relevant that the respondent in Bost lost his
driver's license due to his alcohol related offenses in 1985 and
was imprisoned in 1988 for driving while his license was revoked.
Id. at 19, 449 S.E.2d at 920. However, necessary to the court's
analysis was the fact that respondent made significant financial
contributions to his children; during the six months under
consideration, he paid $8500 in back child support. Id. at 17, 449
S.E.2d at 920. When considering the respondent's emotional
contributions as part of the abandonment analysis, the Bost court
found that respondent visited the children at least four times in
the preceding six months and had expressed to the petitioner his
desire to pay his back child support and set up regular visitation. Id. at 19, 449 S.E.2d at 921. All of this evidence, when viewed
in
light of respondent's severe alcoholism, allowed the court to
conclude the respondent had not willfully abandoned his children.
We do not agree that the circumstances surrounding
respondent's alcohol problems in this case negate a finding of
willful abandonment. Although the record here is also replete with
evidence that respondent suffered from alcoholism, was incarcerated
for some time, and had trouble maintaining steady employment, the
court's findings here indicate that respondent provided no
financial or emotional support during the relevant six months, as
did the respondent in Bost. The findings indicate that during
these six months, respondent made no contacts with his child,
financial or otherwise. Indeed, he had made neither financial nor
emotional contributions to the child since 1993 -- four years
before the filing of this petition. At best, the court's findings
indicate that during the relevant six months, respondent made but
one feeble attempt at providing financial support. While in
prison, he listed the child's name as his dependent on a work
release application such that child support payments could be
deducted from his pay. However, he listed the wrong last name for
his child and "Mecklenburg County" as the child's address.
Further, when no deductions were made by the Department of
Corrections, respondent failed to make any inquiry.
Even considering the time period outside the relevant six
month period, the court's findings reflect that by 1997, when the
petition in this case was filed, respondent had made but twoinquiries regarding the whereabouts of his child in 1993 and 1994.
Although that finding is uncontested on appeal, we note that in
1993 and 1994, the child's residence had not changed since birth,
where respondent had previously visited them. Nonetheless, without
any indication of efforts by respondent to fulfill his parental
duties, financially or emotionally, notwithstanding his problems
with alcohol, the court's findings in this case simply do not
provide an explanation inconsistent with willfulness within the
meaning of Bost. Thus, the trial court improperly concluded
respondent did not willfully abandon his child.
In addition, the trial court in this case cited In re Harris,
87 N.C. App. 179, 360 S.E.2d 485 (1987), and In re Maynor, 38 N.C.
App. 724, 248 S.E.2d 875 (1978), to establish that respondent's
incarceration negated a finding of willfulness on the issue of
abandonment. We disagree. In Maynor, we addressed whether a
respondent's commission of a crime against nature against his
daughter was consistent with a willful intent to abandon, and not
whether the fact of respondent's incarceration was consistent with
a willful intent to abandon. Id. at 727, 248 S.E.2d at 877. In
Harris, although we noted that a respondent's incarceration,
standing alone, neither precludes nor requires a finding of
willfulness, we held one attempted contact during the relevant
statutory period compelled a finding of willful abandonment,
despite respondent's incarceration during the relevant time period
under consideration. In re Harris, 87 N.C. App. at 184, 360 S.E.2d
at 488. We also conclude that one ineffectual attempt at contactduring the relevant six month period in this case would not
preclude otherwise clear willful abandonment, despite the fact of
respondent's incarceration during that time.
The trial court's conclusion that respondent did not willfully
abandon his child is error. Accordingly, we reverse the trial
court's conclusion that respondent did not willfully abandon his
child and remand for consideration as to the best interests of the
child commensurate with this opinion.
Reversed.
Judges JOHN and EDMUNDS concur.
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