An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-501

NORTH CAROLINA COURT OF APPEALS

Filed: 3 August 2004

IN RE A.N.B.                    Mecklenburg County                 &nb sp;          
D.O.B. 01-07-99                No. 02 J 228

    Appeal by respondent from order entered 15 August 2002 by Judge Yvonne Mims Evans in Mecklenburg County District Court. Heard in the Court of Appeals 26 February 2004.

    Charles W. Porter, attorney for petitioner-appellee.

    Janet K. Ledbetter, attorney for respondent-appellant.

    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).


Footnote: 1
     To protect the identities of the parties in this case, this Court will hereinafter refer to the minor child by the pseudonym “Allen Bennett,” to the child's father by the pseudonym “Thomas Bennett,” and to the child's mother by the pseudonym “Carmen East.”

Footnote: 2
     With an Alford plea, defendant “voluntarily, knowingly, and understandingly consent[s] to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” North Carolina v. Alford, 400 U.S. 25, 37 (1970).

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