IN THE SUPREME COURT OF NORTH CAROLINA
No. 188A20
Filed 11 December 2020
IN THE MATTER OF: C.A.H.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from orders entered on 2
January 2020 by Judge Christine Underwood in District Court, Alexander County.
This matter was calendared in the Supreme Court on 23 November 2020 but
determined on the records and briefs without oral argument pursuant to Rule 30(f)
of the North Carolina Rules of Appellate Procedure.
No brief for petitioner-appellee mother.
Sydney Batch for respondent-appellant father.
MORGAN, Justice.
Respondent-father, the biological father of C.A.H. (Charlie)1, appeals from the
trial court’s orders terminating respondent-father’s parental rights on the grounds of
willful failure to pay for the cost of care of the child and willful abandonment. We
affirm the trial court’s decision to terminate respondent-father’s parental rights.
1 Pseudonyms are used in this opinion to protect the juvenile’s identity and for ease of
reading. IN RE C.A.H.
Opinion of the Court
Factual Background and Procedural History
Charlie was born in September 2014. Petitioner-mother and respondent-father
were in a relationship at the time of her birth, but the parents never married. After
Charlie was born, petitioner and respondent briefly resided together at the maternal
grandfather’s home until their separation sometime around December 2014. During
the time that Charlie’s parents lived together, respondent assisted petitioner with
the care of Charlie and with the purchase of necessities for their child.
On 18 March 2016, petitioner obtained a Domestic Violence Protective Order
(DVPO) prohibiting respondent from having contact with petitioner and Charlie for
a one-year period. While the DVPO was in effect, the paternal grandmother, while
babysitting Charlie, took the juvenile to respondent’s house in violation of the order.
Petitioner was escorted to respondent’s home by law enforcement in order to retrieve
Charlie from respondent. This was the last time that respondent saw his daughter.
On 10 September 2016, petitioner married her husband, Mr. I. Mr. I was in the
military and was stationed in California at the time of the marriage. Petitioner could
not live on the military base with her husband, Mr. I, and her daughter, Charlie,
without having full custody of the child. Petitioner filed a child custody action and
obtained sole custody of Charlie in an order entered by the trial court on 21 December
2016. Respondent was incarcerated at the time of the hearing and was scheduled to
be released in May 2017. The trial court ordered respondent to pay $140.00 per month
in child support to begin in June 2017 after respondent’s release from imprisonment.
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Petitioner subsequently moved to California with Charlie after entry of the custody
order.
Respondent was released from incarceration in February 2017. Shortly after
his release, he contacted petitioner to request a visit with Charlie. When petitioner
gave respondent a California address for the location of the authorized visit,
respondent became angry. Respondent did not arrange a trip to California for the
scheduled visit and did not tell petitioner that he did not plan to attend it. Petitioner
and Charlie waited for two hours for respondent at the restaurant which was the
chosen site for the respondent’s visit with his daughter in California. When petitioner
subsequently communicated with respondent via text message concerning
respondent’s failure to appear for his planned visit with Charlie, respondent
answered that it was not “up to him to come and see [Charlie]. It was up to [petitioner]
to bring her to him.” Respondent testified at the termination of parental rights
hearing that he did not attend the visit in California “because it would cost $1,000.00
to get a ticket to go half way across the world.” Respondent’s last contact with
petitioner regarding Charlie was in February 2017.
Petitioner and Mr. I moved back to North Carolina with Charlie in April 2018.
Petitioner did not inform respondent that the three of them had moved back to North
Carolina. Respondent did not learn that Charlie had returned to reside in North
Carolina until respondent was served with the petition to terminate his parental
rights.
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On 25 April 2019, petitioner filed a petition to terminate respondent’s parental
rights, alleging the grounds of willful failure to pay for the care, support, and
education of the minor child; willful abandonment; and the earlier involuntary
termination of respondent’s parental rights with respect to another child. See
N.C.G.S. § 7B-1111(a)(4), (7), (9) (2019). A hearing on the petition was held on 25
July, 29 August, 27 September, and 6 November of the year 2019. In an order entered
2 January 2020, the trial court found that grounds existed to terminate respondent’s
parental rights based on respondent’s willful failure to pay for Charlie’s care and
respondent’s willful abandonment of Charlie. In a separate disposition order entered
on the same day of 2 January 2020, the trial court found that termination of
respondent’s parental rights to Charlie was in the child’s best interests. Accordingly,
the trial court terminated respondent’s parental rights. Respondent appeals to this
Court.
Analysis
On appeal, respondent challenges the trial court’s conclusions that grounds
existed to terminate his parental rights. Respondent first argues that the trial court
erred in concluding that grounds existed to terminate his parental rights based on
willful abandonment. We disagree.
“We review a trial court’s adjudication under N.C.G.S. § 7B-1111 ‘to determine
whether the findings are supported by clear, cogent and convincing evidence and the
findings support the conclusions of law.’ ” In re E.H.P., 372 N.C. 388, 392, 831 S.E.2d
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49, 52 (2019) (quoting In re Montgomery, 311 N.C. 101, 111, 316 S.E.2d 246, 253
(1984)); see also N.C.G.S. § 7B-1109(f) (2019). Unchallenged findings are deemed to
be supported by the evidence and are “binding on appeal.” In re Z.L.W., 372 N.C. 432,
437, 831 S.E.2d 62, 65 (2019). Additionally, “[a] trial court’s finding of fact that is
supported by clear, cogent, and convincing evidence is deemed conclusive even if the
record contains evidence that would support a contrary finding.” In re B.O.A., 372
N.C. 372, 379, 831 S.E.2d 305, 310 (2019) (citing In re Moore, 306 N.C. 394, 403, 293
S.E.2d 127, 132 (1982)). “The trial court’s conclusions of law are reviewable de novo
on appeal.” In re C.B.C., 373 N.C. 16, 19, 832 S.E.2d 692, 695 (2019).
The trial court may terminate parental rights when “[t]he parent has willfully
abandoned the juvenile for at least six consecutive months immediately preceding the
filing of the petition[.]” N.C.G.S. § 7B-1111(a)(7) (2019). “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 B.C.B., 374
N.C. 32, 35, 839 S.E.2d 748, 752 (2020) (quoting In re Young, 346 N.C. 244, 251, 485
S.E.2d 612, 617 (1997)). “[I]f a parent withholds his presence, his love, his care, the
opportunity to display filial affection, and wil[l]fully 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 willfulness of a
parent’s actions is a question of fact for the trial court.” In re K.N.K., 374 N.C. 50, 53,
839 S.E.2d 735, 738 (2020). “[A]lthough the trial court may consider a parent’s
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conduct outside the six-month window in evaluating a parent’s credibility and
intentions, the ‘determinative’ period for adjudicating willful abandonment is the six
consecutive months preceding the filing of the petition.” In re N.D.A., 373 N.C. 71, 77,
833 S.E.2d 768, 773 (2019) (quoting In re D.E.M., 257 N.C. App. 618, 619, 810 S.E.2d
375, 378 (2018)).
In the present case, the determinative six-month period for the alleged ground
of willful abandonment is 25 October 2018 to 25 April 2019. In support of its
conclusion that grounds existed to terminate respondent’s parental rights based on
willful abandonment, the trial court made the following pertinent findings of fact:
9. The minor child [Charlie] was born of a romantic relationship between Petitioner and Respondent. The two were never married. After the minor child was born, the parties lived together for a brief period of time. During that time, Respondent did assist Petitioner with her care and with the purchase of necessaries.
10. On March 28, 2016 Petitioner obtained a [DVPO] against Respondent, which prevented them from having contact for 12 months. While this [DVPO] was valid, Respondent’s mother, while babysitting the minor child, took [Charlie] to Respondent’s house in violation of the order. Petitioner required the assistance of law enforcement to enforce the order and obtain the minor child from Respondent’s residence in February 2016. This was the last time Respondent was in the presence of the minor child.
11. Petitioner filed for and obtained sole custody of the minor child in Alexander County File Number 16 CVD 123. Respondent was incarcerated at the time of the entry of the custodial order.
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12. Pursuant to this Order, he was required to begin paying child support in the amount of $140.00 each month beginning June 1, 2017. He was entitled to “some regular visitation with the minor child upon his release from custody.” His release date was in May 2017. There is a provision in the custody order that provides that either party can notice the matter back on if they cannot agree on a visitation schedule. Respondent has never noticed the custody matter back on for hearing or for a modification.
13. Respondent was in arrears on his child support obligation as of July 31, 2019 in the amount of $3,297.37. His payment history consists of three payments: March 15, 2019 for $114.21; May 3, 2019 for $114.21; and June 7, 2019 for $114.21. As a result of his failure to pay child support, an order to show cause is pending in that action.
14. From June 2017 until April 2019 when this petition was filed, Respondent should have made 23 monthly payments toward his child support obligation. In the 12 months next preceding the filing of this TPR action, the Respondent only made one payment toward his child support obligation. Since its filing, he has made two additional payments. None of these payments was for the full amount of court-ordered support. Aside from these three child support payments, Respondent has provided the minor child with no monetary support, gifts, cards, or other assistance.
15. Petitioner married [Mr. I] on September 10, 2016. She did not join him in California where he was stationed until after she obtained the custody order. Respondent and Petitioner’s husband knew one another prior to Petitioner dating her now husband.
16. February 13, 2017 is the last time Respondent contacted Petitioner regarding the minor child. He had been released from custody and requested a visit. Petitioner and the minor child were residing at Camp Pendleton in California. She offered him the opportunity to choose the day and time for the visit. When she sent him
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an address in California for the place of visitation, this angered him. It is unclear whether he was aware that the minor child was living in California when he requested the visitation. Nevertheless, he did not arrange a trip to California to visit the minor child and did not make arrangements to visit the minor child in North Carolina. He also did not tell Petitioner that he did not plan to attend the arranged visit. She and the minor child waited at the restaurant for two hours. When Petitioner text[ed] him regarding his failure to show, he responded angrily. He told her it wasn’t “up to him to come and see her. It was up to her to bring her to him.” When asked during his testimony why he didn’t attend the visitation, he stated “because it would cost $1,000.00 to get a ticket to go halfway across the world.”
17. The next time Respondent reached out to Petitioner was in September 2017 when his uncle died. He did not ask about [Charlie].
18. Petitioner has maintained the same working telephone number since before the birth of the minor child . . . . Respondent has always had the ability to reach her via this telephone number. Further, the Respondent was aware of her husband’s number, having communicated with him via this number in the past, and this number has not changed. She did not give Respondent her physical or mailing addresses in California, and he did not ask her for this information.
19. Petitioner, her husband, and the minor child returned to Alexander County, North Carolina in April 2018. Neither Respondent nor any member of the family has made contact with Petitioner or her husband to inquire about the welfare of the minor child since February 2017. Except for one partial-support payment prior to the filing of the petition, the Respondent has not provided for the support of his biological child. He did not learn that the minor child had returned to North Carolina until he was served with the petition to terminate parental rights.
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20. Respondent is employed, but has not sent sufficient money to benefit the minor child as required by the child support order. He has been brought to court on several occasions for failure to pay child support. He does not suffer from any disability. He is able-bodied and capable of working. He has not complied with the court order to pay support for the benefit of his biological child, but he is providing financially for the two children he calls his “step- children.” He explains thusly, “They are involved in my life. They aren’t being kept from me.”
21. Even since the filing of the TPR petition April 25, 2019, Respondent has not communicated with Petitioner to inquire about the welfare of his child or to arrange for visitation with her.
....
23. Grounds exist to terminate the parental rights of Respondent pursuant to N.C.G.S. §7B-1111(a)(7) in that the parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition . . . .
On appeal, respondent acknowledges that the trial court correctly found in
Finding of Fact 12 that respondent did not file a motion to modify the child custody
order despite his knowledge that he could do so. He attempts to explain, however,
that his failure to do so was attributable to his limited financial resources and his
financial inability to hire an attorney. Since respondent concedes that the record
supports this finding, Finding of Fact 12 is “deemed supported by competent evidence
and [is] binding on appeal.” In re T.N.H., 372 N.C. 403, 407, 831 S.E.2d 54, 58 (2019).
Respondent next challenges Finding of Fact 21, regarding his lack of contact
with petitioner since the filing of the termination of parental rights petition, as “not
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[being] supported by competent evidence.” However, petitioner testified at the
termination hearing that respondent did not contact her after the filing of the
termination petition. Indeed, respondent acknowledged during his testimony that he
did not contact petitioner to ask her about Charlie after the termination petition was
filed. Thus, this finding is supported by clear, cogent, and convincing evidence.
Respondent also challenges Finding of Fact 23 that grounds exist to terminate
his parental rights pursuant to N.C.G.S. § 7B-1111(a)(7) because the determination
is “not supported by competent evidence.”2 However, Finding of Fact 23 is not an
evidentiary finding of fact, but instead is an ultimate finding of fact. In re J.D.C.H.,
847 S.E.2d 868, 874 (N.C. 2020). “[A]n ‘ultimate finding is a conclusion of law or at
least a determination of a mixed question of law and fact’ and should ‘be distinguished
from the findings of primary, evidentiary, or circumstantial facts.’ ” See In re N.D.A.,
373 N.C. at 76, 833 S.E.2d at 773 (quoting Helvering v. Tex-Penn Oil Co., 300 U.S.
481, 491, 57 S. Ct. 569, 81 L. Ed. 755, 762 (1937)); see also In re Anderson, 151 N.C.
App. 94, 97, 564 S.E.2d 599, 602 (2002) (“Ultimate facts are the final resulting effect
reached by processes of logical reasoning from the evidentiary facts.”). As an ultimate
2 During his argument regarding the ground of willful abandonment in his brief, respondent contends that Findings of Fact 21 and 22 are “not supported by competent evidence.” Finding of Fact 22, however, pertains to the other termination ground found by the trial court; namely, respondent’s failure to pay for the child’s care. Finding of Fact 23 is the trial court’s ultimate finding that grounds existed to terminate respondent’s parental rights based on willful abandonment. Therefore, respondent’s reference to Finding of Fact 22 during his willful abandonment argument is presumed by this Court to be a typographical error, so we address his argument as to Finding of Fact 23.
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finding of fact, the trial court’s determination that respondent’s parental rights were
subject to termination based on willful abandonment “must have sufficient support
in the trial court’s factual findings.” In re N.D.A., 373 N.C. at 77, 833 S.E.2d at 773.
Accordingly, we address respondent’s challenge to Finding of Fact 23 in our
discussion below regarding whether the trial court erred by concluding that
respondent’s parental rights were subject to termination based on willful
abandonment. In re J.D.C.H., 847 S.E.2d at 874.
Respondent further asserts that the trial court erred in concluding that
grounds existed to terminate his parental rights based on willful abandonment.
Respondent acknowledges that he did not have any contact with Charlie in the six
months immediately preceding the filing of the termination petition. Respondent
argues, however, that his lack of contact was not willful because petitioner did not
provide respondent with an address at which to contact Charlie and did not inform
him when petitioner moved back to North Carolina with Charlie. We disagree.
First, although the trial court found that petitioner did not provide respondent
with a mailing address for petitioner in California, the trial court also found that
respondent never asked for this information. The trial court also found that
respondent was in possession of petitioner’s telephone number, as well as the
telephone number for her husband Mr. I. Respondent cannot rely upon petitioner’s
lack of provision of her address to him to support his claim that his lack of contact
was not willful when respondent never made a request for the contact information.
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Second, while it is true that petitioner did not inform respondent of her relocation
from California when she moved back to North Carolina in April 2018 and that
respondent only learned of petitioner’s return to North Carolina with Charlie when
the termination of parental rights petition was filed a year later, respondent had not
had any contact with petitioner or expressed any interest in a relationship with
Charlie since February 2017. Moreover, respondent made no attempt to reestablish
a relationship with Charlie after he learned that his daughter had returned to reside
in North Carolina. Although the statutory determinative period for the
ascertainment of willful abandonment is the six months immediately preceding the
filing of the petition, as we cited earlier, “the trial court may consider a parent’s
conduct outside the six-month window in evaluating a parent’s credibility and
intentions.” In re N.D.A., 373 N.C. at 77, 833 S.E.2d at 773. Here, the trial court found
that even after the filing of the termination petition, respondent “has not
communicated with [p]etitioner to inquire about the welfare of [Charlie] or to arrange
for visitation with her.” Thus, the trial court could properly take into account
respondent’s lack of contact with petitioner about Charlie after the filing of the
termination of parental rights petition and after respondent’s discovery that Charlie
was back in North Carolina in evaluating respondent’s intentions and in making its
eventual determination that respondent’s lack of contact was willful.
The trial court’s findings of fact establish that respondent made no effort to
participate in the juvenile Charlie’s life during the six-month statutory determinative
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period at issue for the adjudication of the ground of willful abandonment or for the
duration of over two years preceding that period. The trial court found that
respondent did not send any cards or gifts to his daughter Charlie, did not contact
petitioner to inquire into Charlie’s welfare, and except for one partial child support
payment which was made one month prior to the filing of the termination petition,
did not provide for Charlie’s care. After learning that petitioner had moved to
California with Charlie in February 2017, respondent did not attempt to set up any
further visitation, did not move to modify the child custody order in an effort to create
a visitation schedule, and did not ask petitioner for her address in order to have any
contact with Charlie. The trial court further found that respondent possessed
petitioner’s telephone number and “has always had the ability to reach [petitioner]
via this telephone number.” Respondent’s last contact with petitioner to inquire about
Charlie was in February 2017. These findings of fact by the trial court in the instant
case demonstrate that respondent “willfully withheld his love, care, and affection
from [Charlie] and that his conduct during the determinative six-month period
constituted willful abandonment.” In re C.B.C., 373 N.C. at 23, 832 S.E.2d at 697.
In contravention of this conclusion, respondent claims that his actions during
the determinative period did not demonstrate his intent to “willfully forego his
parental duties or desire to have a relationship with his daughter.” He asserts that
during the statutory stretch of time he tendered a child support payment, made
several attempts to contact petitioner through his friends’ social media and
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messaging accounts, and met with two attorneys to discuss the child custody order.
Respondent argues that the evidence of such actions by him did not demonstrate his
intent to abandon Charlie.
However, in reviewing a trial court’s adjudication of grounds to terminate
parental rights, our examination is limited to “whether the findings are supported by
clear, cogent and convincing evidence and the findings support the conclusions of
law.” In re C.B.C., 373 N.C. at 19, 832 S.E.2d at 695. It is the trial court’s
“responsibility to ‘pass [ ] upon the credibility of the witnesses and the weight to be
given their testimony and the reasonable inferences to be drawn therefrom.” In re
A.R.A., 373 N.C. 190, 196, 835 S.E.2d 417, 422 (2019) (alteration in original). Because
“the trial court is uniquely situated to make this credibility determination . . .
appellate courts may not reweigh the underlying evidence presented at trial.” In re
J.A.M., 372 N.C. 1, 11, 822 S.E.2d 693, 700 (2019). Here, the trial court weighed the
evidence and eventually determined that respondent’s conduct during the
determinative period constituted willful abandonment. See In re K.N.K., 374 N.C. at
53, 839 S.E.2d at 738 (“The willfulness of a parent’s actions is a question of fact for
the trial court.”).
In this matter, the trial court’s findings of fact support its ultimate finding and
conclusion that respondent willfully abandoned Charlie. The findings establish that
respondent had no contact with Charlie or petitioner for over two years prior to the
filing of the termination petition on 25 April 2019 and that respondent had the ability
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to make at least a modicum of contact during that time span but made no effort to do
so. Respondent’s sole payment of some child support for less than the court-ordered
amount during the six months immediately preceding the filing of the termination
petition does not undermine the trial court’s ultimate finding and conclusion that
respondent willfully abandoned Charlie. See In re C.J.H., 240 N.C. App. 489, 504, 772
S.E.2d 82, 92 (2015) (affirming termination based on abandonment where the
respondent “did not visit the juvenile, failed to pay child support in a timely and
consistent manner, and failed to make a good faith effort to maintain or reestablish
a relationship with the juvenile,” despite making a last minute child support
payment). Therefore, we hold that the trial court did not err by concluding that
grounds existed to terminate respondent’s parental rights due to willful
abandonment pursuant to N.C.G.S. § 7B-1111(a)(7).
The trial court’s conclusion that a ground for termination of parental rights
existed pursuant to N.C.G.S. § 7B-1111(a) is sufficient to support termination of
respondent’s parental rights. In re T.N.H., 372 N.C. at 413, 831 S.E.2d at 62. As such,
we need not address respondent’s arguments regarding the ground of willful failure
to pay for the cost of Charlie’s care as directed in the child custody order. In re S.E.,
373 N.C. 360, 367, 838 S.E.2d 328, 333 (2020). Respondent does not challenge the
trial court’s best interests determination. Consequently, we affirm the trial court’s
orders terminating respondent’s parental rights.
AFFIRMED.
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