IN THE SUPREME COURT OF NORTH CAROLINA
No. 401A19
Filed 25 September 2020
IN THE MATTER OF: J.D.C.H., J.L.C.H.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on
27 June 2019 by Judge Wayne S. Boyette in District Court, Nash County. This matter
was calendared for argument in the Supreme Court on 29 July 2020 but determined
on the record and briefs without oral argument pursuant to Rule 30(f) of the
North Carolina Rules of Appellate Procedure.
No brief for petitioner-appellee mother.
No brief for appellee Guardian ad Litem.
Richard Croutharmel for respondent-appellant father.
HUDSON, Justice.
Respondent appeals from the trial court’s order terminating his parental rights
to J.D.C.H. (Jed) and J.L.C.H. (Joel)1 on the ground of willful abandonment. We
affirm.
I. Factual Background and Procedural History
Petitioner and respondent were involved in an on-again, off-again relationship
from 2010 through 2014 but never married. Joel was born in July 2011, and Jed was
1 Pseudonyms are used to protect the identity of the juveniles and for ease of reading. IN RE J.D.C.H., J.L.C.H.
Opinion of the Court
born in May 2015. The parents ended their romantic involvement in 2014, shortly
after petitioner found out she was pregnant with Jed. Respondent is also the father
of three other children with different women.
Respondent was initially involved in helping provide care for Joel after his
birth. He regularly called to check on Joel and was a “good dad” when he was around.
After Jed was born, however, respondent’s involvement became more sporadic. In the
year after Jed’s birth, respondent saw the children on only a few occasions. He
continued to call to check on the children, but his contact became progressively less
frequent, and he last spoke with the children in September 2016. Jed never had an
overnight visit with respondent.
In July 2016, respondent had a four-hour unsupervised visit with the children
at their paternal grandmother’s home. At that visit, petitioner and respondent agreed
that respondent could see the children every other weekend if he would pay petitioner
$200.00 per month in child support. However, respondent never paid any child
support and did not ask to see the children after that visit. At the time of the
termination hearing on 30 May 2019, respondent had not seen the children since the
July 2016 visit.
Petitioner met her now husband, Mr. H., and they married in December 2016.
In March 2017, petitioner contacted respondent about changing the children’s last
names to also include that of Mr. H., and respondent consented to the name change.
Respondent signed the paperwork but did not show up at the courthouse to bring his
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identification card, despite petitioner telling respondent that she would bring Joel to
the courthouse with her so that petitioner could visit with him. Petitioner nonetheless
was able to effectuate the name changes despite respondent’s absence.
Respondent was incarcerated from October 2018 to 14 December 2018. The day
he was released, respondent called petitioner and asked to see the children and stated
that he wanted to resume his relationship with them. Petitioner denied respondent’s
request to see the children.
On 31 December 2018, petitioner filed petitions to terminate respondent’s
parental rights in both children, alleging the grounds of willful failure to pay a
reasonable portion of the cost of the children’s care and willful abandonment.
N.C.G.S. § 7B-1111(a)(3), (7) (2019). Respondent filed a pro se, handwritten response
to the petitions on 27 February 2019, and his attorney filed an answer to the petitions
on 16 April 2019. At the 30 May 2019 termination hearing, the cases were
consolidated for hearing and petitioner voluntarily dismissed the ground of willful
failure to pay a reasonable portion of the cost of the children’s care. On 27 June 2019,
the trial court entered an order concluding that grounds existed to terminate
respondent’s parental rights based on willful abandonment and that termination was
in the children’s best interests. Accordingly, the trial court terminated respondent’s
parental rights. Respondent appealed.
II. Analysis
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Our Juvenile Code provides for a two-stage process for terminating parental
rights. 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 N.C.G.S. § 7B-1111(a). N.C.G.S. § 7B-
1109(f). “If [the trial court] determines that one or more grounds listed in section 7B-
1111 are present, the court proceeds to the dispositional stage, at which the court
must consider whether it is in the best interests of the juvenile to terminate parental
rights.” In re D.L.W., 368 N.C. 835, 842, 788 S.E.2d 162, 167 (2016) (citing
In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614–15 (1997); N.C.G.S. § 7B-1110).
“We review a trial court’s adjudication under N.C.G.S. § 7B-1109 ‘to determine
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. 16, 19, 832 S.E.2d
692, 695 (2019) (quoting In re Montgomery, 311 N.C. 101, 111, 316 S.E.2d 246,
253 (1984)). “Unchallenged findings are deemed to be supported by the evidence and
are ‘binding on appeal.’ ” In re K.N.K., 374 N.C. 50, 53, 839 S.E.2d 735, 738 (2020)
(quoting In re Z.L.W., 372 N.C. 432, 437, 831 S.E.2d 62, 65 (2019)). “Moreover, we
review only those [challenged] findings necessary to support the trial court’s
determination that grounds existed to terminate respondent’s parental rights.”
In re T.N.H., 372 N.C. 403, 407, 831 S.E.2d 54, 58–59 (2019) (citation omitted). “The
trial court’s conclusions of law are reviewable de novo on appeal.” In re C.B.C.,
373 N.C. at 19, 832 S.E.2d at 695 (citation omitted).
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Respondent contends that the trial court erred by terminating his parental
rights on the ground of willful abandonment. Specifically, he challenges several of the
trial court’s findings of fact and argues that the findings and record evidence do not
support the conclusion that he willfully abandoned the children. We disagree.
A trial court may terminate a parent’s parental rights when “[t]he parent has
willfully abandoned the juvenile for at least six consecutive months immediately
preceding the filing of the petition or motion.” N.C.G.S. § 7B-1111(a)(7).
“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 Young, 346 N.C. at 251, 485 S.E.2d at 617 (citation omitted). “[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) (citation omitted). “The willfulness of a parent’s actions is
a question of fact for the trial court.” In re K.N.K., 374 N.C. at 53, 839 S.E.2d at 738
(citing Pratt, 257 N.C. at 501, 126 S.E.2d at 608). “[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.”
In re N.D.A., 373 N.C. 71, 77, 833 S.E.2d 768, 773 (2019) (citation omitted).
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Here, the determinative six-month period is from 30 June 2018 to 31 December
2018. In support of its conclusion that grounds existed to terminate respondent’s
parental rights based on willful abandonment, the trial court made the following
relevant findings of fact:
22. The last face to face contact and visit the Respondent had with either Juvenile was on July 23, 2016, and lasted approximately four (4) hours. The Respondent has not been in the presence of either Juvenile for over two and one-half (2½) years and has not made any serious or sincere effort to participate in either Juvenile’s life during those two and one-half (2½) years.
23. The last communication of any kind the Respondent had with the Petitioner to inquire about the welfare of the Juveniles was on September 22, 2016, with the exception of one text, Facebook message, or email request to visit in December of 2018, which was rebuffed by the Petitioner.
24. Since September 22, 2016, the Respondent has failed to communicate with the Juveniles, with the exception of the abovesaid request to visit in December of 2018, has not sent any letters to the Juveniles, has failed to call the Juveniles, has failed to provide any emotional, material or financial support to the Juveniles and has failed in any manner to perform his duties as a parent to the Juveniles. The Court does not consider any attempts by the Respondent’s mother inquiring as to the welfare of the Juveniles as attributable to the Respondent himself for the purposes of this action.
25. The Respondent has failed to provide any consistent financial or material support for the use and benefit of the Juveniles since their birth.
26. The Respondent, as a natural father of both Juveniles, has willfully abandoned the Juveniles for at least six (6) consecutive months immediately preceding the
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filing of these Petitions for Termination of Parental Rights pursuant to the provisions of [N.C.G.S.] § 7B-1111(7).
27. The Respondent contends that his failure to visit with both Juveniles, to have any contact with them, or to attempt to have any contact with them was due to his lack of finances, lack of transportation, lack of his maturity level, and resistance of the Petitioner. The [trial c]ourt finds, however, by clear, cogent and convincing evidence that the actions and omissions of the Respondent constitute conduct by him manifesting a willful intent to forego all parental duties and obligations and to relinquish all his parental claims to both Juveniles.
28. The Respondent has not been prohibited from contacting the Juveniles due to sickness, incarceration, or any other valid reason.
29. The Respondent’s actions and/or omissions and failures to act for the two and one-half (2½) years prior to the filing of the Petitions, are wholly inconsistent with his stated desire to maintain custody or a relationship with the Juveniles.
30. The Respondent’s actions and/or omissions and failures to act for the two and one-half (2½) years prior to the filing of the Petitions, constitute willful neglect and a refusal to perform the natural and legal obligations of parental care and support.
31. For the two and one-half (2½) years prior to the filing of the Petitions, the Respondent withheld from the Juveniles his presence, his love, and his care; and further, willfully neglected to provide support and maintenance to the Petitioner for the use and benefit of the Juveniles.
32. The Respondent testified he loved both Juveniles. While the [trial c]ourt does not doubt the Respondent’s love for the Juveniles, the [trial c]ourt finds that the welfare and best interest of the Juveniles are paramount to the parental love felt by the Respondent and that because of
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the Respondent’s demonstrated neglect of his parental duties and obligations the Respondents’ feelings of parental love must yield to the welfare and best interest of the Juveniles.
33. The [trial c]ourt specifically finds that from July of 2016 until the filing o[f] the Petition the Respondent willfully abandoned both Juveniles and withdrew and withheld from them his support and love, and failed to take reasonable efforts to force contact with the Juveniles.
34. The Respondent failed to take legal action, whether with an attorney or on his own, to force contact with the Juveniles. The Respondent never attempted to force contact with the Juveniles in any manner, even though the Respondent earned a decent wage working at various places of employment where he was paid between $300.00 and $450.00 per week “in cash” and supported other children by other women. Further, the Respondent testified that he opened a checking account and purchased a camper for the mother of another of his biological children during a time when he contributed no financial support to the Petitioner for the use and benefit of the Juveniles.
35. The Respondent demonstrated through his testimony that, although he had the ability and intelligence to understand his parental obligations to the Juveniles, he willfully failed to fulfill those parental obligations, stating “I wasn’t being responsible.”
36. Even after he was served with the Petitions in these cases, the Respondent failed to demonstrate through his actions, other than filing the pro se response, a desire to support the Juveniles financially and emotionally, and failed to take any action to force contact with them.
37. The Petitioner testified that the main reason for initiating the Termination of Parental Rights was that the Petitioner did not want the Respondent to obtain custody of the minor children in the event of her death.
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38. The paternal grandmother testified that she attempted to contact the Petitioner regarding the welfare of the children in the 2 ½ years prior to filing the Petition and the paternal grandmother further testified that she had a contact telephone number during this time and that she was certain that the Respondent Father also had access and knowledge of the Petitioner’s telephone number during this time period.
39. Termination of the Respondent’s parental rights is in the best interest and welfare of both Juveniles.
40. The best interests of the Juveniles will be served by granting the Petitioner the relief requested in her Petitions to Terminate Parental Rights filed in 18 JT 64 and 18 JT 65.
41. In making its decision, the [trial c]ourt has considered both the conduct of the Respondent in the six (6) months immediately preceding the filing of the Petitions in this matter and the conduct of the Respondent from the date of the filing of the Petitions to the date of the hearing.
A. Challenged Findings of Fact
On appeal, respondent challenges several of the trial court’s findings of fact as
unsupported or irrelevant. He first challenges as unsupported by the evidence the
last sentence of finding of fact 22, which states that he “has not made any serious or
sincere effort to participate in either Juvenile’s life” over the past two and one-half
years. Respondent argues that his December 2018 phone call to petitioner asking to
visit with the children was “a sincere effort at reestablishing his relationship with his
children[,]” which was made during the relevant period Although respondent’s
request to see the children when he phoned petitioner may have been sincere, we find
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no error in the trial court’s finding that this one unsuccessful attempt to set up
visitation in over two years did not demonstrate a “serious or sincere effort” by
respondent to reestablish his relationship with the children.
Respondent next challenges finding of fact 23. First, he contends that the
finding mischaracterizes the nature of his contact with petitioner in December 2018.
Respondent argues that both he and petitioner testified that the contact was made
by telephone. We agree that the evidence showed respondent’s contact with petitioner
in December 2018 was by telephone. Therefore, to the extent the finding of fact
indicates that the contact was through text, email, or social media, that portion of the
finding is unsupported by the evidence, and we will disregard that portion. See In re
B.C.B., 374 N.C. 32, 35, 839 S.E.2d 748, 751 (2020) (stating that the findings of fact
must be supported by clear, cogent, and convincing evidence). However, any
inaccuracy as to the means of contact has no bearing on the substance of this
finding—that is, that respondent contacted petitioner only once during the
determinative period. Respondent also argues that finding of fact 23 fails to
acknowledge his second attempt to contact petitioner through social media in
January 2019. However, because this contact fell outside the relevant period for
adjudicating the ground of willful abandonment, any possible error in the trial court’s
failure to address this point in its findings is harmless. See In re K.N.K., 374 N.C. at
56, 839 S.E.2d at 740 (“[A]ny error in these findings is harmless and had no impact
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on the court’s adjudication because they occurred . . . after the petition was filed and
well outside the determinative time period.”).
Respondent next contends finding of fact 26, which states that respondent
willfully abandoned the children within the meaning of N.C.G.S. § 7B-1111(a)(7), is
actually a conclusion of law because it requires the application of legal principles and
“decides ultimate issues in the case.” We agree that finding of fact 26 is not an
evidentiary finding of fact, but we determine that it is an ultimate finding. “[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.’ ” In re N.D.A., 373 N.C. at 76, 833 S.E.2d at 772–
73 (quoting Helvering v. Tex-Penn Oil Co., 300 U.S. 481, 491, 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.” (citation omitted)). Regardless of how this finding is
classified, “that classification decision does not alter the fact that the trial court’s
determination concerning the extent to which a parent’s parental rights in a child are
subject to termination on the basis of a particular ground must have sufficient
support in the trial court’s factual findings.” In re N.D.A., 373 N.C. at 76–77, 833
S.E.2d at 773. As a result, we address respondent’s challenge in our discussion
regarding whether the trial court erred by concluding that respondent’s parental
rights were subject to termination based on willful abandonment.
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Respondent next “denies” findings of fact 27, 30, 31, and 33. His challenge to
these findings rests solely on his one phone call to petitioner two weeks before the
petitions were filed. Respondent concedes that had petitioner “filed her TPR petitions
before that telephone call, [he] would have no argument here.” He argues, however,
that because that one telephone call “came first,” was “unprompted,” and showed his
“attempt to reestablish his relationship with his children,” he did not “abandon[ ] all
parental duties and claims to his children” nor “willfully neglect[ ] to provide support
and maintenance to Petitioner.” (Emphasis in original.) We are not persuaded by this
argument. One attempted contact during the six-month determinative period does
not preclude a finding that respondent withheld his love and affection from the
children and willfully abandoned them. See Pratt, 257 N.C. at 502–03, 126 S.E.2d at
609 (rejecting the respondent-father’s argument that his one visit during the
determinative six-month period refuted a finding of willful abandonment); see also In
re B.S.O., 234 N.C. App. 706, 713, 760 S.E.2d 59, 65 (2014) (affirming a termination
order based on willful abandonment where the father made only one phone call to the
children and their mother during the determinative six-month period).
Respondent next “denies as irrelevant” finding of fact 36 on the basis that it
refers to his conduct outside of the determinative six-month period. Respondent
argues that a “trial court has no authority to consider a parent’s post-TPR petition
actions when determining whether to terminate parental rights under [N.C.G.S.]
§ 7B-1111(a)(7).” We do not agree. The trial court’s finding regarding respondent’s
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actions after the termination petition was filed is not “irrelevant” because the trial
court “may consider a parent’s conduct outside the six-month window in evaluating a
parent’s credibility and intentions.” In re C.B.C., 373 N.C. at 22–23, 832 S.E.2d at 697
(emphasis in original) (quoting In re D.M.O., 250 N.C. App. 570, 573, 794 S.E.2d 858,
861 (2016)). Thus, the trial court could consider respondent’s conduct after the filing
of the termination petition to determine the sincerity and intent of his conduct during
the relevant six-month period. Respondent has not challenged the evidentiary
support for this finding and it is thus binding on appeal.
Respondent similarly “denies as irrelevant” the portion of finding of fact 41
that indicates the trial court considered both his conduct during the determinative
six-month period and his conduct after the filing of the termination petition in
reaching its decision. For the reasons we rejected respondent’s challenge to finding of
fact 36, we also reject this argument.
Finally, respondent challenges findings of fact 32, 39, and 40. Finding of fact
32 states that “[w]hile the [trial c]ourt does not doubt the Respondent’s love for the
Juveniles, . . . [Respondent’s] feelings of parental love must yield to the welfare and
best interest of the Juveniles.” In findings of fact 39 and 40, the trial court found that
termination of respondent’s parental rights was in the children’s best interests.
Respondent argues that the “trial court cannot consider best interests until Petitioner
first establishes at least one . . . ground [for termination], which she failed to do.”
However, because the trial court found that petitioner proved by clear, cogent, and
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convincing evidence that at least one ground to terminate respondent’s parental
rights existed—that respondent willfully abandoned the children—the trial court was
therefore required to make dispositional findings about whether termination was in
the children’s best interests. In re D.L.W., 368 N.C. at 842, 788 S.E.2d at 167;
N.C.G.S. § 7B-1110. In any event, these findings were not necessary to support the
trial court’s adjudication of the ground of willful abandonment, and since respondent
does not challenge the trial court’s dispositional determination, we need not address
them. See In re T.N.H., 372 N.C. at 407, 831 S.E.2d at 58–59 (stating that in reviewing
a trial court’s adjudication of grounds for termination, we review only those findings
necessary to support the trial court’s conclusion that grounds existed).
B. Grounds to Terminate Parental Rights
Respondent next contends that the evidence and the trial court’s findings of
fact do not support its conclusion that he willfully abandoned the children.
Respondent acknowledges his admission at the hearing “that he had not been a good
father before [the] 14 December 2018 telephone call to Petitioner” but argues that his
actions did not amount to willful abandonment as defined in N.C.G.S. § 7B-1111(a)(7).
We disagree.
The trial court’s findings of fact demonstrate that except for respondent’s one
unsuccessful phone call requesting to see the children, he made no other attempt to
contact petitioner or to reestablish a relationship with the children during the six-
month determinative period or for nearly two years preceding that period. The trial
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court found that respondent did not send any letters to the children, did not call the
children, and did not provide any emotional, material, or financial support to the
children. The trial court also found that respondent “demonstrated through his
testimony that, although he had the ability and intelligence to understand his
parental obligations to the [children], he willfully failed to fulfill those parental
obligations, stating ‘I wasn’t being responsible.’ ”
Respondent acknowledges that he had no other contact with petitioner during
the relevant six-month period but claims that his single phone call is sufficient to
demonstrate that he did not intend to forgo all parental duties and did not willfully
abandon the children. For a parent’s actions to constitute willful abandonment,
however, “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.”
Pratt, 257 N.C. at 503, 126 S.E.2d at 609. “[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.” Id. at 501, 126 S.E.2d at 608 (citation omitted).
The trial court’s findings of fact demonstrate that respondent willfully
withheld his love, care, and affection from the children and that his conduct during
the determinative six-month period constituted willful abandonment. Respondent’s
one unsuccessful request to visit the children during the six-months immediately
preceding the filing of the termination petition does not undermine the trial court’s
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ultimate finding and conclusion that respondent willfully abandoned the children.
See Pratt, 257 N.C. at 502, 126 S.E.2d at 609; see also In re B.S.O., 234 N.C. App.
at 713, 760 S.E.2d at 65 (“In light of respondent-father’s single phone call to
respondent-mother and his children during the six months immediately preceding
[the filing of the termination petition], the [trial] court did not err in finding that he
willfully abandoned the children.”); In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811,
813 (1982) (affirming termination where “except for an abandoned attempt to
negotiate visitation and support, [the respondent-father] ‘made no other significant
attempts to establish a relationship with [the child] or obtain rights of visitation with
[the child]’ ”). Accordingly, we hold the trial court did not err by terminating
respondent’s parental rights pursuant to N.C.G.S. § 7B-1111(a)(7).
III. Conclusion
Respondent challenges several of the trial court’s findings of fact and its
conclusion of law that respondent willfully abandoned Joel and Jed. Except for a
portion of finding of fact 23, we conclude that the trial court’s findings of fact are
supported by clear, cogent, and convincing evidence, and we further hold that the
findings of fact support the trial court’s conclusion that respondent willfully
abandoned the children. Respondent did not challenge the trial court’s dispositional
determination that termination was in the children’s best interests. Therefore, we
affirm the trial court’s order terminating respondent’s parental rights.
AFFIRMED.
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