IN THE MATTER OF:
Forsyth County
K.B. No. 04 J 498
DOB: 08/27/00
Womble Carlyle Sandridge & Rice, PLLC, by Murray C. Greason,
III; John L. McGrath; Stuart L. Teeter, for petitioner-
appellees Sampson County Department of Social Services and
Guardian ad Litem.
M. Victoria Jayne, for respondent-appellant.
HUNTER, Judge.
Respondent appeals from the district court's order terminating
her parental rights to the minor child K.B. on grounds of neglect
and abandonment, as alleged in a petition filed by the Forsyth
County Department of Social Services (“DSS”) on 10 December 2004.
Finding no error, we affirm.
Initially, we note that the Guardian ad Litem has filed a
motion to dismiss respondent's appeal, arguing that respondent's
assignments of error “fail to 'direct the attention of the
appellate court to the particular error about which the question is
made[.]'” N.C.R. App. P. 10(c)(1). We disagree. The record onappeal filed by respondent contains the following two assignments
of error:
1. The trial court's Findings of Fact were
insufficient to support an Order to
terminate [respondent]'s parental rights
based on abandonment as defined by NCGS
7B-1111(a)(7).
2. The trial court's Findings of Fact were
insufficient to support an Order to
terminate [respondent]'s parental rights
based [on] neglect as defined by NCGS
7B-1111(a)(1).
We believe these assignments of error clearly raise, and are thus
sufficient to preserve, the issues of whether the facts found by
the district court support its conclusions of law that grounds for
termination exist under N.C. Gen. Stat. § 7B-1111(a)(1) and (7)
(2005). Moreover, these issues fall squarely within the scope of
appellate review from a termination of parental rights order. See
generally In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146
(2003). Accordingly, we deny the motion to dismiss.
A proceeding to terminate parental rights is conducted in two
stages. Id. at 493, 581 S.E.2d at 146. In the adjudication stage,
the petitioner must show by clear, cogent, and convincing evidence
that termination is supported by one or more of the grounds
prescribed by N.C. Gen. Stat. § 7B-1111. See N.C. Gen. Stat. §
7B-1109 (2005). The standard of appellate review at the
adjudication stage is whether the district court's findings of fact
are supported by clear, cogent, and convincing evidence, and
whether its findings of fact support its conclusions of law.
Baker, 158 N.C. App. at 493, 581 S.E.2d at 146. If the districtcourt finds grounds for termination, it must then determine the
appropriate disposition for the proceedings under N.C. Gen. Stat.
§ 7B-1110 (2005). At the disposition stage, the court is required
to terminate the respondent's parental rights unless it determines
that termination would be contrary to the best interests of the
child. In re Blackburn, 142 N.C. App. 607, 613, 543 S.E.2d 906,
910 (2001) (citing In re Parker, 90 N.C. App. 423, 368 S.E.2d 879
(1988)). We review the court's disposition in a termination
proceeding only for abuse of discretion. See In re Brim, 139 N.C.
App. 733, 744, 535 S.E.2d 367, 373 (2000).
As quoted above, respondent's assignments of error address
only the adjudication stage of the proceedings, challenging the
court's conclusion that its findings of fact were sufficient to
show grounds for termination under N.C. Gen. Stat. § 7B-1111(a)(1)
and (7). Because respondent has not assigned error to any of the
court's findings of fact, they are deemed to be supported by
competent evidence and are binding on appeal. In re Beasley, 147
N.C. App. 399, 405, 555 S.E.2d 643, 647 (2001); Koufman v. Koufman,
330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Respondent has not
challenged the court's discretionary determination at the
disposition stage that termination of her parental rights was in
the best interest of K.B. Accordingly, our review is confined to
whether the district court's findings of fact are sufficient to
establish grounds for termination under N.C. Gen. Stat. § 7B-
1111(a)(1) and (7). Pursuant to N.C. Gen. Stat. § 7B-1111(a)(7), the district
court may terminate a respondent's parental rights if “[t]he parent
has willfully abandoned the juvenile for at least six consecutive
months immediately preceding the filing of the petition[.]” Id.
When a petition seeks termination under N.C. Gen. Stat. §
7B-1111(a)(7), the trial court must examine the respondent's
behavior in the six months immediately prior to the petition's
filing. In re Young, 346 N.C. 244, 251, 485 S.E.2d 612, 616
(1997). Here, DSS filed its petition on 10 December 2004.
Respondent's behavior toward K.B. between 10 June 2004 and 10
December 2004 is thus determinative on the issue of abandonment.
The termination order includes the following pertinent
findings of fact:
2. K.B. was born on August 27, 2000, in
Winston-Salem, Forsyth County, North
Carolina. She presently resides . . . in
foster care under supervision, direction
and custody of the [DSS] since October 5,
2001.
. . .
5. K.B. came into the custody of the [DSS]
on October 5, 2001, largely because of
issues of inappropriate supervision and
domestic violence.
6. The child was adjudicated to be a
neglected child pursuant to N.C.G.S. 7B-
101(15) on December 5, 2001.
7. That the child continues to be neglected
by the actions of the parents in that
since June 1st, 2004, both Mr. B[.] and
[respondent] have abandoned the child.
8. [Respondent] visited the child on June
1st, 2004.
9. On June 30, 2004, [respondent] visited
with K.[B.], interacted appropriately and
had a good visit.
10. Although Mr. B[.] and [respondent]
appeared for a visit on July 7, 2004 and
July 14, 2004, . . . visitation with the
child was not a priority for either
parent.
11. On July 7, 2004, the parents became
involved in an altercation. The [DSS]
representative tried to divide the visit
between the parents until further
arrangements could be made because the
parents were feuding with each
other. . . . Both parents had five to
ten minutes with K.[B.], but neither
parent showed any interest in the child.
12. On July 14, 2004, the parents caused
another disruption. [Respondent] refused
to arrange for visits separate from Mr.
B[.]'s visits.
13. Since July 14, 2004, the parents have not
had any contact with the child. In
August of 2004, the parents had no
contact, sent no cards, no gifts for the
child's birthday, and did not visit the
child. Neither parent expressed any
interest in the health, welfare, and
education of the child. Even during a
review in court, neither parent raised
any concern for the child . . . and did
not even ask any questions about the
child's welfare.
14. In September of 2004, [respondent]
contacted Roberta Toshumba for bus
passes. Ms. Toshumba reminded
[respondent] about visitation with the
child. Despite [this] encouragement,
[respondent] had no contact with the
child in September of 2004. . . .
15. In October and November of 2004, the
parents had no contact with the child,
and they made no inquiries regarding the
child's health, education, or welfare.
16. In December of 2004, the parents had no
contact with the child. Even during a
review in court, the parents did not
request contact with the child. They
sent no gifts to the child for the
holidays, sent no cards, and did not even
ask questions about the child's welfare.
17. [Respondent] has had regular contact with
Ms. Toshumba to request bus passes, but
at no time has [respondent] expressed any
interest in the child or requested
visitation, even when Ms. Toshumba
reminded her about visitation with the
child. . . .
. . .
22. In the totality of the circumstances, the
actions of the parents indicate that they
have abandoned the child and continue to
abandon the child in that they have shown
no interest in the child, made no visits,
requested no visits, sent no gifts, sent
no cards, and have not inquired about the
health, education, or welfare of the
child since the visitation in June of
2004.
23. The parents' behavior also indicates
neglect at the time of the hearing, and
the parents' behavior shows a strong
probability of the repetition of neglect.
. . .
28. Pursuant to N.C.G.S. 7B-1111(a)(7), the
Court finds that the Respondent Mother
and the Respondent Father have willfully
abandoned K.B.
29. K.B. has been in the custody of [DSS] for
three years and seven months at the date
of this hearing.
. . .
31. K.B. has been placed with C[.A.] and
N[.A.] for over three years, since
January 2002.
32. K.B. is thriving in her placement with
C[.A.] and N[.A.]. K.B. is bonded with
the entire A[.] family.
33. Mr. B[.] and [respondent] have offered
nothing to show that it is not in the
best interest of K.B. to terminate
[their] rights.
34. Mr. B[.] and [respondent] have by their
own action terminated all indi[c]ia of
love, care, and concern for the child,
and have denied the child the ability to
experience their love as parents since
June of 2004.
35. It is in the best interest of K.B. that
the parental rights of [respondent] and
[Mr. B.] be terminated.
In challenging the grounds for termination based on her abandonment
of K.B., see N.C. Gen. Stat. § 7B-1111(a)(7), respondent asserted
that “[t]he Order contains findings that [respondent] visited
[K.B.] through July 2004, less than 6 months before the petition
was filed” on 10 December 2004. Therefore, she insists, “[s]ince
the Order to terminate on the ground of abandonment hinges on the
evidence of 'visits' the statutory 6 month requirement is not met.”
We have previously defined the type of “abandonment”
justifying the termination of a respondent's parental rights as
follows:
“'“'[A]bandonment 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 . . . .'”'”
“Abandonment has also been defined as
wil[l]ful neglect and refusal to perform the
natural and legal obligations of parental care
and support. It has been held that if a
parent withholds his presence, his love, hiscare, the opportunity to display filial
affection, and wi[l]lfully neglects to lend
support and maintenance, such parent
relinquishes all parental claims and abandons
the child. . . .”
Further, “[a]bandonment requires a wil[l]ful
intent to escape parental responsibility and
conduct in effectuation of such intent.” In
this context, “[t]he word 'willful'
encompasses more than an intention to do a
thing; there must also be purpose and
deliberation.”
Bost v. Van Nortwick, 117 N.C. App. 1, 18, 449 S.E.2d 911, 921
(1994) (citations omitted). In assessing the respondent's
willfulness and intent, the court must take into account “the
financial support respondent has provided to the child, as well as
the respondent's emotional contributions to the child” during the
six-month period preceding petitioner's filing the petition to
terminate parental rights. In re McLemore, 139 N.C. App. 426, 429,
533 S.E.2d 508, 510 (2000). “Whether a biological parent has a
willful intent to abandon his child is a question of fact to be
determined from the evidence.” In re Adoption of Searle, 82 N.C.
App. 273, 276, 346 S.E.2d 511, 514 (1986) (citing Pratt v. Bishop,
257 N.C. 486, 126 S.E.2d 597 (1962)). However, a determination
that a respondent has “willfully abandoned the [child] for at least
six consecutive months immediately preceding the filing of the
[termination] petition[,]” within the meaning of N.C. Gen. Stat. §
7B-1111(a)(7), is a “finding and conclusion” and thus reviewable on
appeal. See In re Humphrey, 156 N.C. App. 533, 540-41, 577 S.E.2d
421, 427 (2003). The findings of the district court portray respondent's
complete cessation of any relationship with K.B., as well as her
utter lack of interest in the child's well-being, despite “regular”
contacts with DSS and her appearance in court. Other than the
single visit discussed herein, respondent “show[ed] no interest in
the child, made no visits, requested no visits, sent no gifts, sent
no cards, and ha[s] not inquired about the health, education, or
welfare of the child since the visitation in June of 2004.” Viewed
against these facts, respondent's one “good” visit with K.B. on 30
June 2004 does not preclude the conclusion that she willfully
abandoned the child throughout the relevant six-month period
between 10 June 2004 and 10 December 2004. Compare Searle, 82 N.C.
App. at 276, 346 S.E.2d at 514 (finding that the respondent's
single $500.00 support payment during the relevant six-month period
did not preclude a finding of willful abandonment) and In re Apa,
59 N.C. App. 322, 324, 296 S.E.2d 811, 813 (1982) (“except for an
abandoned attempt to negotiate visitation and support, respondent
'made no other significant attempts to establish a relationship
with [the child] or obtain rights of visitation with [the child]'”)
with Bost, 117 N.C. App. at 18-19, 449 S.E.2d at 921 (finding no
willful abandonment where respondent, during relevant six-month
period, visited children at Christmas, attended three soccer games
and told mother he wanted to arrange support payments). Moreover,
the fact that respondent and her husband attended a visitation on
7 July 2004 but “showed [no] interest” in K.B. and then sabotagedtheir last visitation with the child on 14 July 2004, in no way
refutes a determination that they abandoned the child.
Respondent contends that her failure to visit, support,
contact, or inquire about K.B. was due to her “frustrat[ion]” with
DSS, rather than a willful abdication of her role as parent.
However, the district court found that respondent acted willfully
and with the requisite intent in severing all ties with the child,
and we are bound by that finding. Moreover, respondent's purported
frustration with DSS did not deter her from seeking bus passes from
Ms. Toshumba during the relevant period. Despite maintaining these
regular contacts with DSS for another purpose, at no time did
respondent ask to see K.B. or so much as inquire about the child.
While not strictly material to our analysis, we note that her
manifest indifference toward K.B. continued up to the date of the
termination hearing.
Respondent also points to the district court's findings that,
at the time of the hearing, she had successfully obtained treatment
for substance abuse, maintained stable housing for four years, and
“provided clean and appropriate housing and care” for her infant
son. While these facts show significant progress by respondent in
other areas, they have little bearing upon the issue of her
abandonment of K.B. Indeed, to the extent they reflect stability
and consistency in other facets of respondent's life, these facts
tend to support the finding that her actions toward her daughter
were the product of conscious deliberation and intent, rather than
circumstance. In the context of our former adoption statute, N.C. Gen. Stat.
§ 48-2, the North Carolina Supreme Court directly rejected a
parent's claim that a single visit during the applicable six-month
period precluded a finding of willful abandonment.
To constitute an abandonment within the
meaning of the adoption statute it is not
necessary that a parent absent himself
continuously from the child for the specified
six months, nor even that he cease to feel any
concern for its interest. If his conduct over
the six months period evinces a settled
purpose and a wil[l]ful intent to forego all
parental duties and obligations and to
relinquish all parental claims to the child
there has been an abandonment within the
meaning of the statute.
Pratt, 257 N.C. at 503, 126 S.E.2d at 609; cf. also In re Estate of
Lunsford, 359 N.C. 382, 390-91, 610 S.E.2d 366, 372 (2005)
(discussing parental abandonment in the context of Intestate
Succession Act). Similarly, we now hold that the district court's
findings support an adjudication of willful abandonment under N.C.
Gen. Stat. § 7B-1111(a)(7), notwithstanding respondent's visitation
with the child on 30 June 2004.
Having found a valid basis for termination of respondent's
parental rights under N.C. Gen. Stat. § 7B-1111(a)(7), we need not
address the additional ground of neglect found by the district
court. See In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230,
233-34 (1990); In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133
(1982).
Order affirmed; motion to dismiss denied.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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