In re I.J.W.

• Court: Supreme Court of North Carolina
• Decided: June 18, 2021
• Docket: 347A20
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2021-NCSC-73

No. 347A20

Filed 18 June 2021

IN THE MATTER OF: I.J.W.

Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 9 April

2020 by Judge Mark L. Killian in District Court, Burke County. This matter was

calendared for argument in the Supreme Court on 22 April 2021 but determined on

the record and briefs without oral argument pursuant to Rule 30(f) of the North

Carolina Rules of Appellate Procedure.

Mona E. Leipold for petitioner-appellee Burke County Department of Social Services.

Christopher S. Edwards for appellee Guardian ad Litem.

Leslie Rawls for respondent-appellant father.

EARLS, Justice.

¶1 Respondent, the biological father of minor child I.J.W. (Ian)1, appeals from the

trial court’s order terminating his parental rights. Unchallenged findings of fact

based on clear and convincing evidence in the record support the trial court’s

conclusion that respondent willfully abandoned Ian. Therefore, we affirm the trial

1 A pseudonym is used for ease of reading and to protect the juvenile’s identity. IN RE: I.J.W.

Opinion of the Court

court’s adjudication that there are grounds pursuant to N.C.G.S. § 7B-1111(a)(7) to

terminate respondent’s parental rights as to Ian.

1. Factual Background

¶2 On 6 December 2017, the Burke County Department of Social Services (DSS)

obtained nonsecure custody of Ian and filed a petition alleging him to be a neglected

and dependent juvenile.2 According to the petition, on 24 February 2017, DSS

received a Child Protective Services (“CPS”) report stating that the mother left Ian

in a car while she was in a courthouse and he had a seizure. In addition, the mother

was using methamphetamines while Ian was in her care, and respondent was aware

of the mother’s drug use. On 2 March 2017 DSS received the results of Ian’s drug

screen, showing that he tested positive for methamphetamines. On 27 February 2017

Respondent signed a safety assessment agreeing to be Ian’s primary caregiver.

¶3 In its subsequent Adjudication/Disposition Order entered 1 March 2018, the

trial court found as fact that respondent obtained a domestic violence protective order

in effect from 24 March 2017 to 23 March 2018, based on findings that the mother

struck Ian leaving marks on two occasions, was using methamphetamines in Ian’s

presence, and used heroin while being his primary caretaker. The protective order

barred contact between respondent and Ian’s mother, and required that the maternal

2 DSS filed an amended petition on 12 December 2017 including the results from the

parents’ 4 and 5 December 2017 drug tests. IN RE: I.J.W.

grandmother supervise any and all contact between Ian and his mother.

¶4 The trial court further found that notwithstanding these restrictions, on 27

November 2017 a DSS social worker met with respondent at his home, where the

mother was also living. Respondent admitted to the social worker that the home did

not have electricity, heat, or running water and admitted that he and the mother had

recently used methamphetamines. Despite respondent’s statements that he

understood the terms of the protective order, he still did not comply. On 4 December

2017 the social worker completed a home visit and observed Ian to have a bruise on

his cheek which the mother explained was caused by a fall while he was playing with

her. That day the mother agreed to leave the home and to abide by the terms of the

protective order. On 5 December 2017 the social worker made an unannounced visit

and again found the mother to be in the home with Ian present. The mother was

arrested for violating the trial court’s protective order. That same day respondent

tested positive for methamphetamines and THC metabolite.

¶5 A hearing on the juvenile petition was held on 30 January 2018. On 1 March

2018, the trial court entered an order adjudicating Ian to be a neglected and

dependent juvenile based on factual stipulations made by the parents. The trial court

ordered respondent to comply with an out-of-home family services agreement in

which he was required to obtain a substance abuse assessment and follow all

recommendations; submit to random drug screens; attend parenting classes and IN RE: I.J.W.

demonstrate skills learned; obtain a parenting capacity evaluation and follow all

recommendations; obtain a psychological assessment and follow all

recommendations; obtain a domestic violence offender assessment and follow all

recommendations; obtain and maintain stable, appropriate, and independent

housing; and obtain and maintain legal, stable, and verifiable income. Respondent

was allowed one hour of supervised visitation per week to be supervised by DSS.

¶6 Following a 1 March 2018 permanency-planning hearing, the trial court

entered an order on 12 April 2018 setting the permanent plan for Ian as reunification

with a secondary plan of adoption. Respondent was ordered to comply with the

components of his case plan and was allowed two hours of supervised visits every

other week.

¶7 Respondent initially made progress on his case plan. He completed his

substance abuse assessment and began group therapy, completed parenting classes

at One Love, completed his psychological assessment on 12 February 2018 which

recommended he attend individual counseling, and obtained transportation.

Respondent also obtained housing, but it was deemed inappropriate for a minor child.

¶8 In a permanency-planning order entered 3 August 2018, the trial court

changed the permanent plan to adoption with a secondary plan of reunification. The

trial court found that respondent was not making reasonable progress toward

reunification and was not actively participating in his case plan. Specifically, the IN RE: I.J.W.

trial court found that respondent had not begun individual counseling, had tested

positive for marijuana on 9 May 2018, and maintained that it was age-appropriate to

“whip” Ian for discipline. The court also found that on 18 May 2018, DSS ended

respondent’s visit with Ian early due to respondent’s aggressive behavior and

derogatory comments toward the social worker. Respondent became irate, left the

building, and threw grass and mud at DSS’s door. Respondent did not have any

further communication with DSS after that visit. The trial court suspended

respondent’s visitation and ordered that respondent complete an anger management

program as part of his case plan.

¶9 Although respondent was ordered to complete an anger management program

on 19 July 2018 and ongoing visitation was conditioned upon the father completing

the program, he failed to do so. There is nothing in the record to suggest that the

trial court’s finding of fact that respondent refused to participate in an anger

management program is wrong and respondent does not contest it. Moreover,

respondent did not return to court to request that his visitation otherwise be

reinstated. He was aware of what he needed to do to reinstate visitation with Ian

and did nothing. Respondent had not visited Ian since 18 May 2018. The trial court

found that respondent withheld his love and affection from Ian by not seeking to re-

establish visitation and by failing to send cards, gifts or letters.

¶ 10 Essentially, after the 18 May 2018 incident, respondent was unwilling to work IN RE: I.J.W.

with DSS. From May 2018 until DSS filed the motion to terminate parental rights

almost a year and a half later on 18 October 2019, respondent ceased all engagement

with DSS and case plan objectives. He would disengage with social workers when

they called, he refused to provide his address, and did not attempt to work any aspect

of his case plan.

¶ 11 The trial court entered a permanency planning order on 14 February 2019

placing the child with his maternal grandmother who recently had her foster care

license reinstated. The court found that Ian had been having visits with his maternal

grandmother, and they had bonded.

¶ 12 On 18 October 2019, DSS filed a motion to terminate respondent’s parental

rights to Ian.3 DSS alleged that five grounds existed to terminate respondent’s

parental rights: (1) neglect, (2) willful failure to make reasonable progress to correct

the conditions that led to Ian’s removal from the home, (3) willful failure to pay a

reasonable portion of the cost of Ian’s care, (4) dependency, and (5) willful

abandonment. N.C.G.S. § 7B-1111(a)(1)–(3), (6)–(7) (2019). On 6 December 2019,

respondent filed an answer in which he admitted the ground of willful failure to pay

under N.C.G.S. § 7B-1111(a)(3) but denied the remaining alleged grounds.

¶ 13 Following hearings held 30 January, 31 January and 27 February 2020, the

3 The mother relinquished her parental rights to Ian on 6 May 2019. IN RE: I.J.W.

trial court entered an order on 9 April 2020 terminating respondent’s parental rights.

The trial court concluded that all five grounds alleged in the termination motion

existed and that termination of respondent’s parental rights was in Ian’s best

interests.4 Accordingly, the trial court terminated respondent’s parental rights to Ian.

Respondent appealed.

2. Legal Analysis

¶ 14 Respondent argues generally that the trial court erred by concluding that

grounds existed to terminate his parental rights. “Our Juvenile Code provides for a

two-step process for termination of parental rights proceedings consisting of an

adjudicatory stage and a dispositional stage.” In re Z.A.M., 374 N.C. 88, 94 (2020)

(citing N.C.G.S. §§ 7B-1109, -1110 (2019)). “At the adjudicatory stage, the petitioner

bears the burden of proving by ‘clear, cogent, and convincing evidence’ the existence

of one or more grounds for termination under section 7B-1111(a) of the General

Statutes.” In re A.U.D., 373 N.C. 3, 5–6 (2019) (quoting N.C.G.S. § 7B-1109(f) (2017)).

We review a trial court’s adjudication of grounds to terminate parental rights “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,

4 Although the trial court found and concluded that grounds existed by clear and convincing evidence pursuant to N.C.G.S. § 7B-1111(a)(2) to terminate respondent’s parental rights, the “Order on Adjudication” portion of the termination order does not list N.C.G.S. § 7B-1111(a)(2) as a ground. The parties seem to agree in their briefs, however, that N.C.G.S. § 7B-1111 (a)(2) was a ground on which the court terminated parental rights. IN RE: I.J.W.

392 (2019) (quoting In re Montgomery, 311 N.C. 101, 111 (1984)). “The trial court’s

conclusions of law are reviewable de novo on appeal.” In re C.B.C., 373 N.C. 16, 19

(2019).

¶ 15 Although the trial court determined that five grounds exist to terminate

respondent’s parental rights, it is well settled that a “finding by the trial court that

any one of the grounds for termination enumerated in N.C.G.S. § 7B-1111(a) exists is

sufficient to support a termination order.” In re B.O.A., 372 N.C. 372, 380 (2019).

While the termination order is comprehensive, the clearest ground on the facts of this

case and therefore the place we start is that of willful abandonment.

¶ 16 The court must determine that the parent abandoned his child “for at least

[the] six consecutive months” before the motion to terminate parental rights was filed.

N.C.G.S. § 7B-1111(a)(7). The trial court made numerous findings of fact supported

by clear and convincing evidence in the record establishing that respondent father

willfully abandoned Ian during the relevant six-month period from 18 April 2019 to

18 October 2019. When the motion to terminate respondent’s rights was filed,

respondent had not visited Ian in more than a year. Moreover, during that year he

refused to work his case plan—failing to take any of the steps required to reunite

with Ian. Indeed, during the relevant period he did not make any effort to maintain

any sort of parental bond with Ian.

¶ 17 As the trial court found, respondent demonstrated that this was willful IN RE: I.J.W.

behavior on his part to the extent that once the motion for termination of parental

rights was filed in October of 2019, he began to “complete a flurry of services from

October 2019 through January 2020.” Based on the evidence before it, the trial court

concluded that respondent's post-petition behavior demonstrated that he previously

had the ability to engage in services but chose not to. However, his later actions do

not bar an ultimate finding of willful abandonment because the statute explicitly

prescribes the relevant time period for evaluating whether a child has been willfully

abandoned and none of respondent’s activities in compliance with his case plan,

including completing a substance abuse assessment, substance abuse classes and a

domestic violence assessment, occurred during the relevant period. See In re E.B.,

375 N.C. 310, 318 (2020) (“[A]lthough the trial court may consider a parent's 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.”). Respondent has not contested any of

these findings of fact and therefore they are binding on appeal. See In re T.N.H., 372

N.C. 403, 407 (2019) (“Findings of fact not challenged by respondent are deemed

supported by competent evidence and are binding on appeal.”). Taken together, the

trial court’s factual findings in this case support the conclusion that respondent

willfully abandoned Ian for more than six consecutive months preceding the filing of

the petition. IN RE: I.J.W.

¶ 18 Because the ground of willful abandonment is sufficient to support the trial

court’s order of termination, we need not address respondent’s arguments as to the

other grounds. Respondent does not challenge the trial court’s best interests

determination. Accordingly, we affirm the trial court’s order terminating

respondent’s parental rights.

AFFIRMED.