IN RE A.N.B. Mecklenburg County &nb
sp;
D.O.B. 01-07-99 No. 02 J 228
TIMMONS-GOODSON, Judge.
Thomas Bennett
(See footnote 1)
(“Bennett”) appeals the trial court order
terminating his parental rights with regard to his four-year-old
son, Allen. For the reasons stated herein, we reverse the order of
the trial court.
The pertinent factual and procedural history of this case is
as follows: On 24 May 1999 Bennett was indicted on two charges of
first-degree sexual offense and one charge of indecent liberties
involving his stepdaughter. On 29 November 1999 Bennett entered anAlford plea
(See footnote 2)
to three counts of indecent liberties with a child.
Bennett was sentenced to seventeen to twenty-one months in prison
and ordered to undergo sex offender counseling and substance abuse
treatment.
Bennett and his wife, Carmen East (“East”), divorced in July
2000. Pursuant to the divorce, East petitioned the court for sole
custody of the couple's only child, Allen. On 25 July 2000, the
trial court signed a consent order granting East sole custody of
Allen. The trial court ordered Bennett not to have any contact
with East or any member of East's family, including Allen.
Bennett served his sentence for the indecent liberties with a
minor convictions and was released from the Department of
Corrections in March 2001. On 20 February 2002, East filed the
underlying petition to terminate Bennett's parental rights to Allen
on the following grounds: neglect; failure to pay child support;
abandonment; and commission of felony assault upon other children
residing in the home. On 15 August 2002, the trial court conducted
a termination of parental rights hearing. Following the
termination hearing the trial court entered the following pertinent
findings of fact:
13. From the date the father [left the home]
in April, 1999, to the time of trial, August
15, 2002, a total of 3 years and 4 months,
there have been no communications via phone,U.S. Mail, email or any other means by the
father to the mother nor her children. The
father did not send any birthday cards,
Christmas presents, Christmas cards nor any
Holiday cards or greeting cards of any kind.
14. From the date the father disappeared in
April, 1999, to time of trial, August 15, 2002
there have been no face to face visitations of
any kind by the father with the child.
17. Findings of Fact [] from Custody Order
entered on June 6, 2000 stated:
10. The Defendant . . .” [Bennett]
“. . . is not a fit and proper
person nor is it in the best
interests of the minor child for the
Defendant to exercise visitation
privileges with the minor child,
[Allen]. 11. The Defendant should
not have any contact with the
plaintiff or anyone in the
Plaintiff's family, including the
minor child, [Allen].
19. From June 6, 2000, the date the custody
order was entered, until the time of trial,
August 15, 2002, a period of 26 months, the
Defendant has voluntarily and willingly failed
to petition this court nor any other court to
renew visitation with the child, even though
he has had the opportunity to do so. For 10
of those months (the father had been in jail 7
months prior to June 6, 2002), the father was
incarcerated. He was released from Department
of Corrections in March, 2001 and still failed
to petition the Court for visitation as of the
date of trial, August 15, 2002, a total of 17
months while not incarcerated. He sought the
advice of several attorneys but did not pursue
or make progress in filing an action to renew
visitation.
The trial court made no findings with respect to Bennett's failure
to pay child support or Bennett's commission of a felony assault on
other children residing in the home. The trial court then entered
the following pertinent conclusions of law: 5. The father has neglected the child by
a. willfully fail[ing] to
communicate with the child in any
way from April, 1999 to time of
trial, August 15, 2002 a total of 3
years and 4 months. The child is 3
years and 8 months old at time of
trial.
b. willfully fail[ing] to visit
with the child from April, 1999 to
time of trial, August 15, 2002.
c. willfully fail[ing] to petition
the court for visitation from June
6, 2000, time of the custody order,
to time of trial, August 15, 2002,
even though he had the opportunity
to do so and had sought legal advice
from several attorneys regarding the
matter.
d. willfully fail[ing] to
successfully complete sex offender
treatment nor counseling of any kind
as [sic] the time of trial.
e. willfully fail[ing] to obtain a
graduation certificate for substance
abuse counseling as of the time of
trial.
f. fail[ing] to contribute any
money toward the support of this
child from April, 1999 to August 15,
2002, a total of 40 months.
g. willfully fail[ing] to timely
register with the North Carolina
Registry of Sex Offenders. . . .
i. [sic] On November 29, 1999
[Bennett] was convicted of 3 counts
of indecent liberties upon a minor,
the victim being . . . [Bennett's
stepdaughter]. . . .
j. willfully fail[ing] to
implement, or even begin to
implement, any of his plans to
establish, what he called his“financial base” for his son. . . .
. . . .
l. willfully fail[ing] to accept
responsibility for his criminal acts
upon his step-daughter from the date
of the offenses, on, or about,
September[] 1, 1998 and April 15,
1999, to the time of trial, August
15, 2002. . . .
6. The father has abandoned his child because
he:
a. willfully failed to communicate
with the child in any way from
April, 1999 to time of trial, August
15, 2002 a total of 3 years and 4
months.
b. failed to visit with the child
from April, 1999 to time of trial,
August 15, 2002[.]
c. willfully failed to petition the
court for visitation from June 6,
2000, time of the custody order, to
time of trial, August 15, 2002, even
though he had the opportunity to do
so and had sought legal advice from
several attorneys regarding the
matter.
d. failed to contribute any money
toward the support of this child
from April, 1999 to August 15, 2002,
a total of 40 months.
. . . .
The trial court terminated Bennett's parental rights with
regard to Allen. It is from this judgment that Bennett appeals.
____________________________________________ The sole issue presented on appeal is whether the trial court
erred in terminating Bennett's parental rights based on willful
abandonment and neglect.
“A termination of parental rights proceeding is a two-stage
process.” In re Howell, 161 N.C. App. 650, 656, 589 S.E.2d 157,
160 (2003). The trial court first examines the evidence and
determines whether sufficient grounds exist under N.C. Gen. Stat.
§ 7B-1111 to warrant termination of parental rights. Id. The
trial court's findings must be supported by clear, cogent, and
convincing evidence. Id. at 656, 589 S.E.2d at 160-61. If the
trial court determines that any one of the grounds for termination
listed in § 7B-1111 exists, the trial court may terminate parental
rights consistent with the best interest of the child. Id. at 656,
589 S.E.2d at 161. “We review the trial court's decision to
terminate parental rights for abuse of discretion.” In re
Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002).
General Statutes § 7B-1111(a)(7) provides that the court may
terminate parental rights where a “parent has willfully abandoned
the juvenile for at least six consecutive months immediately
preceding the filing of the petition or motion . . . .” (2003).
“[A]bandonmnent imports any willful 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, “[t]he word 'willful' encompasses more
than an intention to do a thing; there must also be purpose anddeliberation.” In re Adoption of Searle, 82 N.C. App. 273, 275,
346 S.E.2d 511, 514 (1986) (citing In re Clark v. Jones, 67 N.C.
App. 516, 313 S.E.2d 284, disc. review denied, 311 N.C. 756, 321
S.E.2d 128 (1984)).
We conclude that, in the case sub judice, Bennett's lack of
contact with Allen does not demonstrate a settled purpose to forego
all parental duties and relinquish all parental rights. The trial
court correctly noted that the child custody order prohibited
Bennett from having contact with Allen. At the custody hearing the
trial judge ordered Bennett to have “[a]bsolutely no, no contact”
with Allen. At the time of the custody hearing, Bennett was on
probation following his convictions of indecent liberties with a
minor. Had Bennett disobeyed the judge's order, he risked exposing
himself to contempt of court for violating the terms of the consent
order, or substantial imprisonment for violating the terms of his
probation. Although there is evidence that Bennett had no contact
with Allen, the evidence is mitigated by the prior court order
prohibiting Bennett from contacting Allen. We conclude that
Bennett produced substantial evidence that his failure to
communicate with Allen was mandated by the court order prohibiting
contact and thus cannot be said to be willful. Thus, the trial
court erred in terminating Bennett's parental rights on the basis
of abandonment.
The trial court also terminated Bennett's parental rights on
grounds of neglect. North Carolina General Statutes § 7B-101(15) (2003) defines a
neglected juvenile as:
[a] juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, guardian, custodian, or caretaker; or
who has been abandoned; or who is not provided
necessary medical care; or who is not provided
necessary remedial care; or who lives in an
environment injurious to the juvenile's
welfare; or who has been placed for care or
adoption in violation of law.
In the case sub judice, the child custody order prohibited
Bennett from contacting Allen, and thus prevented Bennett from
providing Allen with the type of care required to overcome an
allegation of neglect. As discussed supra, any attempt by Bennett
to care for Allen may have resulted in substantial imprisonment as
a violation of Bennett's probation.
We recognize that the determination of willful abandonment and
neglect are fact-specific inquiries and, as such, we limit our
holding to the facts of the case before us. Because we conclude
that there were not adequate findings to support a conclusion that
Bennett willfully abandoned or neglected Allen, the trial court
erred by terminating Bennett's parental rights.
REVERSED.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***