In re T.J.F.

750 S.E.2d 568, 230 N.C. App. 531, 2013 WL 6073329, 2013 N.C. App. LEXIS 1217
CourtCourt of Appeals of North Carolina
DecidedNovember 19, 2013
DocketNo. COA13-707
StatusPublished
Cited by1 cases

This text of 750 S.E.2d 568 (In re T.J.F.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re T.J.F., 750 S.E.2d 568, 230 N.C. App. 531, 2013 WL 6073329, 2013 N.C. App. LEXIS 1217 (N.C. Ct. App. 2013).

Opinion

HUNTER, Robert C., Judge.

Petitioner is the mother of T.J.F. (hereinafter referenced by the pseudonym “Taylor”), bom in May 2003 of a relationship between petitioner and respondent-father. Petitioner and respondent-father resided together for approximately six months after Taylor’s birth and then separated. Taylor remained with petitioner. On 9 August 2012, petitioner filed a petition to terminate the parental rights of respondent-father pursuant to N.C. Gen. Stat. § 7B-llll(a)(l) (2011) on the ground of neglect. On 21 March 2013, the court filed an order concluding grounds existed to terminate the parental rights of respondent-father pursuant to N.C. Gen. Stat. § 7B-llll(a)(7) in that respondent-father willfully abandoned Taylor for at least six consecutive months immediately preceding the filing of the petition. By separate disposition order, the court concluded that the best interest of Taylor required termination of the parental rights of respondent-father.

Discussion

Respondent-father first contends the court erred by terminating his parental rights on a ground not alleged in the petition. A petition for termination of parental rights must allege “[f]acts that are sufficient to warrant a determination that one or more of the grounds for terminating parental rights [fisted in N.C.G.S. § 7B-llll(a)[ exist.” N.C. Gen. Stat. § 7B-1104(6) (2011). The facts alleged need not be “exhaustive or extensive” but they must be sufficient to “put a party on notice as to what acts, omission or conditions are at issue.” In re Hardesty, 150 N.C. App. 380, 384, 563 S.E.2d 79, 82 (2002). When the petition alleges the existence of a particular statutory ground and the court finds the existence of a ground not cited in the petition, termination of parental rights on that ground may not stand unless the petition alleges facts to place the parent on notice that parental rights could be terminated on that ground. In re B.L.H., 190 N.C. App. 142, 147-48, 660 S.E.2d 255, 257-58, off d per curiam, 362 N.C. 674, 669 S.E.2d 320 (2008).

We now consider whether the petition at bar alleged sufficient facts to place respondent-father on notice that his parental rights may be terminated because he abandoned his child. “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 Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986). “It has been held that if a parent withholds his presence, his love, his care, the opportunity to display filial affection, and wilfully neglects to lend [533]*533support 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).

Abandonment of a child can support termination of parental rights under two provisions ofN.C. Gen. Stat. § 7B-llll(aSee Inre Humphrey, 156 N.C. App. 533, 540-41, 577 S.E.2d 421, 427 (2003). First, parental rights may be terminated pursuant to N.C. Gen. Stat. § 7B-llll(a)(l) if the court concludes the parent has neglected the child by abandoning the child. N.C. Gen. Stat. § 7B-llll(a)(l) (2011); see also N.C. Gen. Stat. § 7B-101(15) (defining a neglected juvenile as one “who does not receive proper care, supervision, or discipline from the juvenile’s parent, guardian, custodian, or caretaker; or who has been abandoned”). Second, parental rights may be terminated pursuant to N.C. Gen. Stat. § 7B-llll(a)(7) upon a finding that the parent “has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion” to terminate parental rights. N.C. Gen. Stat. § 7B-llll(a)(7) (2011).

While the better practice would have been to specifically plead termination pursuant to section 7B-llll(a)(7), we conclude the petition here sufficiently alleged facts to place respondent-father on notice that his parental rights may be terminated on the basis that he abandoned his child. The petition alleged that respondent’s “lack of involvement with or regard for the minor child constitutes neglect under N.C.G.S. 7B-llll(a)(l).” As examples of neglect, the petition cited respondent’s limited contact with the child despite consistently available opportunities for involvement; his failure to have any contact with the child within the six months preceding the petition; his failure to call or write the child within the same six-month period; and his failure to provide a reasonable amount for the cost and care of the child. The petition also alleged that as a result of the limited contact, the child has “no meaningful relationship” with respondent-father. These allegations suggest that respondent-father had foregone his parental responsibilities to the child and withheld his presence, care and parental affection by failing to maintain contact with the child.

The reliance of respondent-father upon In re G.W., 182 N.C. App. 214, 228-29, 641 S.E.2d 725, 735 (2007), in which this Court invalidated termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(7), is misplaced. The petitioner in that case conceded the petition failed to allege abandonment and the respondent-parent had been given no notice by the allegations of the petition that his rights might be terminated on that basis. Here, the petition contained sufficient facts to put respondent-father on [534]*534notice that his parental rights could be revoked on the basis of abandonment. Therefore, In re C. W. is inapposite.

Respondent-father next contends the court abused its discretion by terminating his parental rights. He argues the court’s determination of the child’s best interest is flawed.

Upon determining the existence of one or more grounds for termination of parental rights, the court next decides whether terminating the parent’s rights is in the juvenile’s best interest. N.C. Gen. Stat. § 7B-1110(a) (2011). In deciding whether termination of parental rights is in the best interest of the juvenile,

the court shall consider the following criteria and make written findings regarding the following that are relevant:
(1) The age of the juvenile.
(2) The likelihood of adoption of the juvenile.
(3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.
(4) The bond between the juvenile and the parent.
(5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.
(6) Any relevant consideration.

Id. The court’s decision is discretionary and reviewable only for abuse of discretion. In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002).

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Bluebook (online)
750 S.E.2d 568, 230 N.C. App. 531, 2013 WL 6073329, 2013 N.C. App. LEXIS 1217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-tjf-ncctapp-2013.