In re M.S.A.

• Court: Supreme Court of North Carolina
• Decided: April 23, 2021
• Docket: 332A20
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2021-NCSC-52

No. 332A20

Filed 23 April 2021

IN THE MATTER OF: M.S.A.

Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 6

February 2020 by Judge Jimmy L. Myers in District Court, Davidson County. This

matter was calendared in the Supreme Court on 19 March 2021, 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 filed for petitioner-appellee.

Edward Eldred for respondent-appellant father.

MORGAN, Justice.

¶1 Respondent-father appeals from the trial court’s order terminating his

parental rights to his minor child, M.S.A. (Mary1). In his sole argument on appeal,

respondent-father asserts that his voluntary lack of communication with Mary from

the inception of the period of his incarceration in November 2012 through the

December 2019 private termination of parental rights hearing could not serve as a

basis for the trial court’s conclusion that grounds existed to terminate his parental

rights due to abandonment under N.C.G.S. § 7B-1111(a)(7) because the trial court did

1 A pseudonym is used to protect the identity of the juvenile and for ease of reading. IN RE M.S.A.

Opinion of the Court

not find, nor does the evidence support a finding, that respondent-father’s failure to

contact Mary was willful. Because we conclude that clear, cogent, and convincing

evidence is contained in the record to show that respondent-father admittedly ignored

his ability to contact his daughter or her caretaker, we affirm the termination order.

I. Factual and Procedural Background

¶2 This private termination action began on 12 December 2018 when petitioner,

who is Mary’s maternal great, great aunt, filed a petition seeking to terminate the

parental rights of both of Mary’s parents.2 On 1 March 2019, petitioner filed an

amended petition alleging that Mary had resided with her continuously from October

2010 until the filing of the petition, and that she had exercised sole legal and physical

custody of Mary since June 2011. Petitioner claimed that she had provided for Mary’s

financial, medical, emotional, and physical needs during this time of Mary’s

habitation with petitioner, and that petitioner would continue to be able to do so.

Petitioner further alleged that respondent-father was incarcerated at the time of the

filing of the petition, that he had not visited with or seen Mary since 2011, and that

he had not provided financial support nor sent any gifts or correspondence to Mary

for at least five years. Petitioner filed her action in order to seek the termination of

the parental rights of respondent-father on the basis of willful abandonment under

N.C.G.S. § 7B-1111(a)(7) (2019). Respondent-father filed an answer denying

2 Mary’s mother is not a party to this appeal. IN RE M.S.A.

petitioner’s material allegations.

¶3 The petition was heard during the 19 December 2019 session of District Court,

Davidson County. Respondent-father did not contest petitioner’s allegations that he

had previously demonstrated the ability to communicate with Mary’s mother and

family members while incarcerated3, but offered testimony that he did not possess

actual knowledge of the information that he needed to reach Mary or petitioner. On

6 February 2020, the trial court entered an order terminating respondent-father’s

parental rights, concluding that respondent-father had willfully abandoned Mary

pursuant to N.C.G.S. § 7B-1111(a)(7) and that termination of respondent-father’s

parental rights was in Mary’s best interests. Respondent-father appeals the trial

court’s order, asking this Court to decide “whether an incarcerated parent who has

not had contact with his child for eight years and does not know how to contact his

child may lose his parental rights on the ground of abandonment.”

II. Analysis

3 Respondent-father takes exception with the trial court’s finding that he was also in

regular contact with his attorney, arguing that he had simply testified that he knew how to get in contact with his attorney while incarcerated. Such an admission would appear to be detrimental to respondent-father’s contention that the evidence in the record could not establish his ability to contact Mary or petitioner, as it appears that respondent-father knew how to contact a person who presumably possessed the wherewithal to obtain and relay the information to respondent-father which was necessary to contact Mary and petitioner. As explained below, however, this contested finding by the trial court is unnecessary to support the trial court’s ultimate conclusion and is therefore excluded by us from any consideration. IN RE M.S.A.

¶4 The North Carolina General Statutes set forth a two-step process for the

termination of parental rights. After the filing of a petition for the termination of

parental rights, a trial court conducts a hearing to adjudicate the existence or

nonexistence of any grounds alleged in the petition as set forth in N.C.G.S. § 7B-1111.

N.C.G.S. § 7B-1109(e) (2019). The petitioner carries the burden of proving by clear,

cogent, and convincing evidence that grounds exist under N.C.G.S. § 7B-1111(a) to

terminate a respondent-parent’s parental rights. In re A.U.D., 373 N.C. 3, 5–6, (2019).

Upon an adjudication that at least one ground exists to terminate the parental rights

of a respondent-parent, the trial court will then decide whether terminating the

parental rights of the respondent-parent is in the child’s best interests. N.C.G.S. §

7B-1110(a).

¶5 N.C.G.S. § 7B-1111(a)(7) states, in pertinent part, that the court may

terminate parental rights upon a finding that the parent has willfully abandoned the

juvenile for at least six consecutive months immediately preceding the filing of the

petition. The only argument being voiced by respondent-father on this appeal

concerns the trial court’s adjudication that respondent-father willfully abandoned

Mary. He contends that the trial court’s findings of fact do not support its ultimate

conclusion of law that he willfully abandoned Mary pursuant to N.C.G.S. § 7B-

1111(a)(7).

¶6 When reviewing the trial court’s adjudication of the existence of a ground to IN RE M.S.A.

terminate the parental rights of a respondent-parent, we examine whether the trial

court’s findings of fact “are supported by clear, cogent and convincing evidence and

[whether] the findings support the conclusions of law.” In re E.H.P., 372 N.C. 388,

392 (2019) (quoting In re Montgomery, 311 N.C. 101, 111 (1984)). Any factual findings

of the trial court left unchallenged by an appellant are “deemed supported by

competent evidence and are binding on appeal.” In re T.N.H., 372 N.C. 403, 407,

(2019). We review the trial court’s conclusions of law under a de novo standard. In re

C.B.C., 373 N.C. 16, 19 (2019).

¶7 Section 7B-1111(a)(7) permits the trial court to terminate a parent’s rights

when that “parent has willfully abandoned the juvenile for at least six consecutive

months immediately preceding the filing of the petition or motion.” Id. “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 (2020) (quoting In re Young, 346 N.C. 244, 251 (1997)). We have held

that abandonment is evident when 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[.]” Pratt v. Bishop, 257 N.C. 486, 501 (1962). “Although 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 IN RE M.S.A.

N.D.A., 373 N.C. 71, 77 (2019) (quoting In re D.E.M., 257 N.C. App. 618, 619 (2018)).

¶8 Respondent-father does not challenge the trial court’s findings of fact which

reflect that respondent-father “has never written letters,” has never “sent gifts or

cards,” has never “provided financially” for Mary, and has never contacted petitioner

“to inquire as to [Mary]’s well-being . . .” from the time of his incarceration in

November 2012 until the filing of the amended termination petition on 1 March 2019.

Nor does respondent-father dispute the trial court’s findings that respondent-father

had neither “made an effort to ensure that he has a relationship with the minor child,”

nor “reached out to [p]etitioner to inquire as to the minor child’s well-being since the

minor child came into [p]etitioner’s custody.” Instead, respondent-father contends

that the trial court’s remaining findings of fact do not establish the willfulness of the

total nonperformance of his parental duties toward Mary, both during the relevant

six-month period and in prior years.

¶9 In two respects, respondent-father contests the following portion of the trial

court’s Finding of Fact 14, which he considers to be the linchpin of the trial court’s

willfulness determination:

While incarcerated, [r]espondent/father has always had the resources and ability to contact outside individuals, either through writing letters or by telephone. In fact, respondent/father stays in frequent contact with his family members and lawyers and has been in contact with respondent/mother. Respondent/father has never asked these individuals to assist him in getting in contact with Petitioner to inquire as to the minor child’s well-being, nor IN RE M.S.A.

has he asked for their help in maintaining a relationship with the minor child, despite having opportunities to do so.

First, respondent-father argues that he was not in “frequent contact” with his lawyers

and that he had not contacted Mary’s mother since 2012. Second, respondent-father

contends that it is untrue that he never asked any family member for petitioner’s

contact information, as he testified at the hearing that he asked petitioner’s sister for

petitioner’s telephone number and “she wouldn’t give [respondent-father] that.”

However, respondent-father concedes that Finding of Fact 14 is otherwise accurate

to the extent that it shows that he “was in frequent contact with some of his family

members and never asked those family members to help him contact [petitioner].”

Respondent-father’s further admission that “he wrote [the mother] one letter in 2012

and did not hear back from [the mother]” is susceptible to the reasonable

interpretation reflected in the trial court’s finding that “[r]espondent-father ha[d]

been in contact with respondent[-]mother.” Further, although respondent-father

offered uncontested testimony that he asked petitioner’s sister for the telephone

number of petitioner in 2012, nevertheless this evidence does not dilute the veracity

of the portion of the trial court’s Finding of Fact 14 that respondent-father had “never

asked these individuals to assist him in getting in contact with [p]etitioner to inquire

as to the minor child’s well-being.” A thorough analysis of the application of the

provisions of N.C.G.S. § 7B-1111(a)(7) regarding the ground of abandonment to

Finding of Fact 14 illustrates that respondent-father admits the validity of several of IN RE M.S.A.

the circumstances which the trial court determined in the finding and that

respondent-father’s strongest example to support his interest in contacting

petitioner—the request for her telephone number—occurred years outside of the

determinative six-month statutory period. Respondent-father’s assertions are largely

irrelevant to the gravamen of the ground of abandonment as to whether he

manifested a “willful determination to forego all parental duties and relinquish all

parental claims to the child.” In re B.C.B., 374 N.C. at 35.

¶ 10 This Court limits its “review to those challenged findings that are necessary to

support the trial court’s determination that . . . parental rights should be

terminated[.]” In re N.G., 374 N.C. 891, 900 (2020). Thus, even after disregarding the

remaining segment of the trial court’s Finding of Fact 14 which is vigorously disputed

by respondent-father that he “stays in frequent contact with his . . . lawyers,” the

remainder of the trial court’s finding amply supports its conclusion that respondent-

father willfully abandoned Mary.

¶ 11 Respondent-father claims that, even though he “had the ability to contact

people on the outside and that he did not ask those people to help contact [petitioner],”

it does not follow that he willfully abandoned Mary. This assertion suggests that

respondent-father is introducing his incarceration as a mechanism by which to

absolve his parental duty toward Mary and to allow him therefore to refrain from

undertaking the effort to pursue parental involvement with Mary through contact IN RE M.S.A.

with those persons with whom he communicated during his incarceration. We have

previously rejected such representations which respondent-father appears to foment:

Incarceration, standing alone, is neither a sword nor a shield in a termination of parental rights decision. Although a parent’s options for showing affection while incarcerated are greatly limited, a parent will not be excused from showing interest in the child’s welfare by whatever means available.

In re C.B.C., 373 N.C. at 19–20 (quoting In re D.E.M., 257 N.C. App. 618, 621 (2018))

(extraneity omitted).

¶ 12 Here, it is undisputed that respondent-father, at a minimum, possessed the

ability to seek Mary’s contact information from his relatives but declined to do so for

a number of years. The trial court’s unchallenged findings reflect that respondent-

father did not utilize “whatever means available” to display his interest in Mary’s

welfare during his incarceration. In re C.B.C., 373 N.C. at 19–20. Instead,

respondent-father withheld his love, care, and filial affection from Mary, both in the

statutorily relevant six-month period prior to the filing of the petition to terminate

parental rights and in the years preceding that time span. See Pratt, 257 N.C. at 501.

As this constitutes willful abandonment, the trial court did not err in adjudicating

the existence of this ground pursuant to N.C.G.S. § 7B-1111(a)(7) in terminating

respondent-father’s parental rights.

III. Conclusion IN RE M.S.A.

¶ 13 Based on the foregoing, we conclude that the trial court properly determined

that the parental rights of respondent-father were subject to termination pursuant to

N.C.G.S. § 7B-1111(a)(7). Respondent-father does not challenge the trial court’s

conclusion that termination of his parental rights was in Mary’s best interests.

Consequently, we affirm the trial court’s order terminating respondent-father’s

parental rights.

AFFIRMED.