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Termination of Parental Rights--willful abandonment--pending sexual abuse investigation
The trial court erred by concluding that grounds existed to terminate respondent father's
parental rights to his natural daughter based on willful abandonment under N.C.G.S. § 7B-1113,
because: (1) respondent was instructed by legal counsel not to have any contact with the minor
child or the mother until pending criminal charges alleging respondent's sexual abuse with the
minor child were resolved, the criminal charges were filed almost two years prior to the relevant
six month period, and they were not resolved until several months after the termination of
parental rights petition was filed; (2) during this time, DSS entered into a protection plan with
the mother that provided there would be no visitation with respondent due to allegations of abuse
that were being investigated; (3) none of the other findings of fact made by the district court
support the conclusion of willful abandonment; and (4) child support payments were made
during the relevant six month period of time.
No brief filed for petitioner-appellee.
Charlotte Gail Blake for respondent-appellant.
P.N.S. (respondent-father) appeals a judgment adjudicating that grounds exist to terminate his parental rights as to his natural daughter T.C.B.
L.B. (the mother) and respondent are the natural parents of T.C.B., born 21 September 1995. Both the mother and the respondent were 14 years of age at the time T.C.B. was conceived. On 2 February 2002, the mother filed a petition to terminate theparental rights of respondent on the ground that he willfully abandoned T.C.B. as defined by N.C. Gen. Stat. § 7B-1111(a)(7). Respondent filed an answer requesting that his parental rights not be terminated. A guardian ad litem was appointed to represent the interest of the minor child.
This matter came for hearing at the 10 June 2003 session of Buncombe County District Court with the Honorable Rebecca B. Knight presiding. The district court entered an order finding that grounds existed to terminate the parental rights of respondent because he willfully abandoned the minor child for six months preceding the filing of the petition to terminate his parental rights.
Respondent gave timely notice of appeal.
On appeal, respondent argues that the district court erred in
adjudicating that grounds existed to terminate his parental rights
based on the allegation of willful abandonment. We agree and hold
that the findings do not support the determination of willful
abandonment and reverse the adjudication decision.
N.C. Gen. Stat. § 7B-1113, defines willful abandonment as when: [t]he parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion. N.C.G.S. § 7B-1113 (2003). Abandonment imports any wil[l]ful or intentional conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child. In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813 (1982). In this context, the word 'willful' encompasses more than an intention to do a thing; there must also be purpose and deliberation. In reAdoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986). Whether a biological parent has a willful intent to abandon his child is a question of fact to be determined from the evidence. Id. at 276, 346 S.E.2d at 514.
Here, the district court found willful abandonment based on the reasons that
[t]he Respondent father has not had any visits with the child since August 1999 and has not requested any visits since the mother told him in August 1999 that he could not see the child for the weekend requested. The Respondent never exercised regular and consistent visitation with the child since her birth. The Respondent has never had the child with him for an overnight visit since her birth. . . . The Respondent father has not sent the child letters, cards, or gifts on a regular basis. The criminal charges against the father limited Respondent's ability to be involved in parenting of his child but there were actions he could have taken that could have kept him more involved with his child. . . . The actions of the Respondent since the birth of the child constitute . . . abandonment of the child.
Analyzing the above, we are bound to determine whether the
findings of fact support this conclusion, focusing on respondent's
actions as they transpired during the relevant six month period
proceeding the filing of the TPR petition (September 2001) and the
actual filing of the TPR petition (February 2002). We hold the
findings of fact do not support this conclusion. Specifically,
significant portions of findings of fact 13, 14, and 20 reveal:
13. . . . [Respondent] did have one visit with the minor child on August 15, 1999, when he took her to the Sourwood Festival. Later in August after he finished band camp, the respondent called the [mother] on a Thursday evening and asked if he could visit [T.C.B.] on Saturday. [The mother] said, You can't call and hung-up the telephone. TheRespondent immediately called [the mother] back and asked what she meant and she said, Someone will inform you shortly.
At some point after that, in the fall of
1999, the Respondent was charged with First
Degree Sexual Offense and the alleged victim
was the minor child, [T.C.B.]. The incident
allegedly occurred the day he took the child
to the Sourwood Festival. The Respondent and
his parents were instructed by attorney, Sean
Devereux, who represented him in the criminal
case that they should not attempt contact with
the child or [L.B.] until the criminal case
resolved. The Respondent and his parents have
not had any contact with the minor child or
[L.B.] since that time except that gifts were
sent for Christmas of that year. During the
criminal proceedings, there were discussions
involving the dismissal of the criminal
charges if the respondent would relinquish his
parental rights. The Respondent refused to
voluntarily relinquish his parental rights
because he did not want the child to grow up
thinking he had done so to protect himself.
The State filed a voluntary dismissal of the
criminal charges with prejudice in the spring
of 2002. [Attorney] Devereux and the
Respondent did not learn the charges had been
dismissed until December 2002.
14. The Respondent received a settlement
from a personal injury action that paid him
$25,000.00 on his 18th, 19th, 20th, and 21th
birthdays. He started paying temporary child
support of $200.00 per month beginning October
2001 until the matter was heard in court then
Respondent began paying $494.00 per month.
The Respondent also made a lump sum payment of
$4,000.00 at some point after receiving his
annuity payments. The Respondent made the
last child support payment in April 2003. He
has not made any payments since then because
he does not have any money. The Respondent
has used all of the $100,000.00 received from
the annuity settlement.
. . .
20. . . . In the fall of 1999, the
Department of Social Services entered into a
protection plan with [the] mother that
provided there would be no visitation with[Respondent] due to allegations of abuse that
were being investigated.
These findings clearly indicate respondent was instructed by legal counsel not to have any contact with the minor child nor the mother until the pending criminal charges were resolved. The criminal charges were filed almost two years prior to the relevant six month period, and were not resolved until several months after the TPR petition was filed. During this time, DSS entered into a protection plan with the mother that provided there would be no visitation with respondent due to allegations of abuse that were being investigated. None of the other findings of fact made by the district court support the conclusion of willful abandonment as defined by our court in prior opinions. Cf. Searle, 82 N.C. App. at 276-77, 346 S.E.2d at 514 (Respondent had been released from prison for over one year before he sent any support money, and respondent admitted in his testimony that the custody order did not prevent him from supporting, calling or corresponding with the child.); Apa, 59 N.C. App. at 324, 296 S.E.2d at 813 (except for an abandoned attempt to negotiate visitation and support, respondent 'made no other significant attempts to establish a relationship with [M.A.A.] or obtain rights of visitation with [M.A.A.]').
The findings of fact do indicate, however, that child support payments were made during the relevant six month period of time. The findings state that respondent started paying temporary child support in the amount of $200.00 per month beginning October 2001 (one month after the relevant six month period) until the matterwas heard in court (no date given), when respondent began paying $494.00 per month; and respondent also made a lump sum payment of $4,000.00 at some point after receiving his annuity payments. These findings regarding the payment of child support further serve to undermine the district court's conclusion of willful abandonment. Accordingly, this assignment of error is overruled. Reversed and remanded.
Judges HUDSON and TYSON concur.
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