IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-675
Filed 19 February 2025
Henderson County, Nos. 23 JT 103–05
IN THE MATTER OF:
X.I.F., J.R.F., C.D.F.
Minor Children
Appeal by respondent-father from orders entered 25 April 2024 by Judge Lora
T. Baker in Henderson County District Court. Heard in the Court of Appeals 16
January 2025. Henderson County, Nos. 23 JT 103–05.
Rebekah W. Davis, for respondent-appellant father.
Krista S. Peace, for petitioner-appellee mother.
FREEMAN, Judge.
Respondent-father appeals from orders terminating his parental rights as to
X.I.F. (“Xia”), J.R.F. (“Janet”), and C.D.F. (“Cody”).1 On appeal, respondent-father
contends the trial court erred in concluding grounds existed to terminate his parental
rights under N.C.G.S. §§ 7B-1111(a)(1), (6), and (7). After careful review, we agree
the trial court’s findings do not support its conclusions that grounds existed under
1 Pursuant to N.C. R. App. P. 42(b), pseudonyms are used to protect the juveniles’ identities. IN RE: X.I.F., J.R.F., C.D.F.
Opinion of the Court
subsections (a)(1) and (a)(6). However, because we conclude the trial court did not
err in concluding grounds existed to terminate respondent-father’s parental rights
under subsection (a)(7), and because only one ground is necessary to support
termination of parental rights, we vacate in part and affirm in part.
I. Factual and Procedural Background
Petitioner-mother and respondent-father are the biological parents of Xia,
Janet, and Cody. The parties lived together from 2007 until their “on-again, off-
again” relationship ended in either 2012 or 2013. After the parties separated, the
children have continuously resided with petitioner-mother.
Respondent-father was incarcerated for “a good bit of” the period from 2013 to
2018. During respondent-father’s incarceration, petitioner-mother “tr[ied] to make it
to where he could communicate with the kids” by depositing funds into his prison
account to facilitate phone calls that occurred “once, maybe twice a week.” Upon
respondent-father’s release, petitioner-mother “told him if he ever went to jail again,
[she] would no longer put money on his books to contact his children and [she] would
be done.”
Respondent-father “didn’t have much of a relationship with the children”
when he was not incarcerated. Petitioner-mother made multiple arrangements for
the children to see respondent-father, but apart from one visit in 2018 when he
brought petitioner-mother money to purchase shoes for the children, respondent-
father did not see them. About three weeks after that visit, respondent-father began
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serving a sentence of incarceration for drug trafficking with an expected release date
of 2027.
As petitioner-mother had previously indicated, she stopped “trying to
encourage or arrange [a] relationship or visitation” between the children and
respondent-father upon his 2018 incarceration. Specifically, petitioner-mother
stopped depositing funds into respondent-father’s prison account to fund phone calls.
Respondent-father attempted to use a third party to facilitate communication prior
to 2022, but eventually “the third party said that [petitioner-mother] was no longer
responding or sending my letters back.” However, petitioner-mother did not change
her phone number or address, and even though respondent-father knew her address,
the only communication between respondent-father and his children since 2018
consisted of two letters he sent in 2022.
When asked whether she had tried to prevent respondent-father from seeing
the children, petitioner-mother stated:
Yes, I have. . . . That was when he first got incarcerated and I told him that I wasn’t doing this no more because I felt like the only time he contacted his children and wanted anything to do with these children is when he was incarcerated.
According to petitioner-mother, she “never stopped him from writing” and “never
stopped the children from writing,” but she felt “[i]t’s not up to me to make a
relationship.”
In 2016, petitioner-mother began a relationship with David Maynor. Mr.
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Maynor and petitioner-mother began living together in 2018 and were married in
2019. At some point, petitioner-mother’s oldest child suggested that Mr. Maynor
adopt the children.
On 14 November 2023, petitioner-mother filed petitions to terminate
respondent-father’s parental rights as to Xia, Janet, and Cody. The petitions alleged,
as is relevant here, that:
7. The facts warranting the determination that grounds exist for termination of the parental rights of the Respondent pursuant to N.C. Gen. Stat. § 7B-1111 are as follows:
a. The Respondent has not seen the minor child since 2016 ....
b. The actions of the Respondent constitute a willful abandonment of the minor child for a period in excess of six (6) months next preceding the filing of this Petition as described in N.C. Gen. Stat. § 7B-1111(a)(7), in that Respondent has had, at his own election, has had no contact of any nature whatsoever, with the minor child since 2016 when he briefly saw the minor child, and three years ago when he sent a letter to the minor child. The Respondent has had no in person contact with the minor child since 2016. . . . The Respondent has made no other efforts to contact the minor child.
c. The Respondent has not provided any direct or formal support for the minor child since the separation of the parents in 2012.
d. The Respondent is a convicted felon and is currently serving time in prison for trafficking schedule II with a potential release date of October 28, 2027.
f. The Respondent has had zero communication with the minor child in three years.
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g. The Respondent has sent no birthday presents nor birthday cards to the minor child since the separation of the parents.
h. The Respondent has sent no Christmas presents nor Christmas cards to the minor child since the separation of the parents.
i. The Respondent has sent no cards, no clothing, no toys and no gifts to the minor child.
j. The Respondent has had a complete lack of involvement with the child for more than three years establishing a pattern of abandonment and neglect.
k. The Respondent has neglected and abandoned the minor child for the six-month period immediately preceding the filing of the petition.
l. The Respondent has willfully failed to pay a reasonable portion of the cost of the child’s care since the separation of the parents and for the six-month period immediately preceding the filing of this petition.
m. The Respondent lacks the ability to care for the minor child since he is incarcerated and lacked the ability to care for the minor child prior to his incarceration.
n. The conduct of the father has been such as to demonstrate that he will not promote the child’s healthy and orderly physical and emotional well-being.2
The termination hearing took place before Judge Lora T. Baker in Henderson
County District Court on 28 March 2024. After reviewing the petitions and hearing
testimony from respondent-father, petitioner-mother, and Mr. Maynor, the trial court
orally announced its dispositional ruling:
2 The petitions contained no subpart 7(e).
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Petition filed by petitioner alleges or requests termination of parental rights for respondent father based off of 7B-1111(a)(7) which shows that the parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or the parent has voluntarily abandoned an infant. We’re clearly not in the infant situation. So by my math the time period we’re talking about is—the petition was filed November 14, 2023. So that time period would be May 14, 2023 to November 14 2023.
I find by clear and convincing evidence that father has willfully abandoned the juvenile for those six consecutive months preceding the filing of the petition. I find no communication, no letters, no phone calls, no visitation, no financial support, nothing that would evidence an intent to maintain a relationship with the minor children during that relevant six-month period.
Looking outside that six-month period, just in relation to father’s intent, I will find that he sent two letters, the last being 2022. That he sent money in the amount of $90 for the children in 2018. That was accompanied by a five-minute visit with the minor children. That clearly incarceration has been an impediment to the father trying to reach out to the children and to establish and maintain a relationship, and I am taking that into consideration that that clearly does impose issues with father’s attempt to maintain the relationship. But just due to the fact that he had sent letters in the past, he had the ability and wherewithal to do so. The mother hadn’t changed her address during that relevant time period, hadn’t changed her phone number during that relevant time period. So he had the means and opportunity to at least sent letters and make phone calls even though physical visitation was not possible.
The trial court further orally concluded that it would be in the children’s best
interest to terminate respondent-father’s parental rights. On 25 April 2024, the trial
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court entered three orders terminating respondent-father’s parental rights to each of
the three children. As is relevant here, the orders stated:
7. That facts warranting the determination that grounds exist for the termination of the parental rights of the Respondent pursuant to N.C. Gen. Stat. § 7B-1111 are as follows:
a. The Respondent has not seen the minor child since 2016 ....
b. The actions of Respondent constitute a willful abandonment of the minor child for a period in excess of six (6) months next preceding the filing of this Petition as described in N.C. Gen. Stat. § 7B-1111(a)(7), in that Respondent has had no contact of any nature whatsoever, with the minor child during the relevant period from November 14, 2023 through May 14, 2024.
c. Clear and convincing evidence exists that the father willfully abandoned the minor child for six consecutive months prior to the filing of the petition.
d. The court finds that there was no communication between the father and the minor child, no letters, no visits, no financial support nor anything that would indicate an intent to maintain a relationship with the minor child during the relevant period.
e. Looking outside the relevant time period in relation to the father’s intent, the court finds that the father sent $30.00 to pay for the minor’s shoes in 2018 and that he sent two letters in 2022.
f. The mother had the same address where the father dropped off the $30.00 and sent the two letters and the mother had the same phone number since the father has been incarcerated.
g. The father’s incarceration may have been an impediment to the father’s ability to reach out and maintain a
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relationship, however, the father clearly had the ability and knowledge to communicate with the minor child. The father testified that he maintained phone contact with another minor child and he has previously sent this minor child letters so he had the ability to maintain contact despite his incarceration.
h. Previous to this most recent incarceration, the father made little attempt to maintain a relationship with the minor child.
i. The father has displayed a pattern of conduct indicating his lack of intent to maintain a relationship with the minor child.
The orders concluded that “Respondent’s parental rights with the minor
child[ren] should be permanently terminated on the grounds stated in N.C. Gen. Stat.
§§ 7B-1111[(a)](1)(6) and (7), and taking into account the best interest of the
child[ren].” Respondent-father timely appealed to this Court, arguing that the trial
court erred by terminating his parental rights under N.C.G.S. §§ 7B-1111(a)(1), (6),
and (7).
II. Jurisdiction
This Court has jurisdiction to review “[a]ny order that terminates parental
rights or denies a petition or motion to terminate parental rights.” N.C.G.S.
§ 7B-1001(a)(7) (2023).
III. Standard of Review
A termination of parental rights proceeding involves two different stages that
trigger two distinct standards of review on appeal. At the first stage, the adjudicatory
stage, “the party petitioning for the termination must show by clear, cogent, and
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convincing evidence that grounds authorizing the termination of parental rights
exist.” In re Young, 346 N.C. 244, 247 (1997). “If a trial court’s finding of fact is
supported by clear, cogent, and convincing evidence, it will be deemed conclusive even
if the record contains evidence that would support a contrary finding.” In re S.R., 384
N.C. 516, 520 (2023) (cleaned up). “A trial court’s finding of an ultimate fact is
conclusive on appeal if the evidentiary facts reasonably support the trial court’s
ultimate finding of fact.” In re G.C., 384 N.C. 62, 65 (2023) (cleaned up). We review
de novo whether the trial court’s properly supported findings of fact in turn support
its conclusions of law. Id. at 66.
At the second stage of a termination of parental rights proceeding, the
dispositional stage, the trial court considers whether termination of the respondent’s
parental rights would be in the child’s best interest. “The trial court’s assessment of
a juvenile’s best interests at the dispositional stage is reviewed solely for abuse of
discretion,” and we “review the trial court’s dispositional findings of fact to determine
whether they are supported by competent evidence.” In re C.B., 375 N.C. 556, 560
(2020) (citations omitted).
Respondent-father’s arguments in this matter focus solely on the adjudicatory
stage of the proceeding. Accordingly, we review whether the trial court’s factual
findings are supported by clear, cogent, and convincing evidence and whether the
supported factual findings in turn support the trial court’s conclusions of law.
IV. Analysis
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On appeal, respondent-father argues: (1) the trial court erred in concluding
grounds existed to terminate his parental rights under N.C.G.S. § 7B-1111(a)(1); (2)
the trial court erred in concluding grounds existed to terminate his parental rights
under N.C.G.S. § 7B-1111(a)(6); and (3) the evidence and findings did not support the
trial court’s conclusion that grounds existed to terminate his parental rights under
N.C.G.S. § 7B-1111(a)(7). We address each argument in turn.
A. N.C.G.S. § 7B-1111(a)(1)
Section 7B-1111 of our General Statutes provides that a court may terminate
an individual’s parental rights “upon a finding of one or more” of eleven statutory
grounds. N.C.G.S. § 7B-1111(a) (2023). The first statutory ground contemplates
termination where the parent “has abused or neglected the juvenile” within the
meaning of those terms provided in section 7B-101. N.C.G.S. § 7B-1111(a)(1) (2023).
Respondent-father argues that the trial court erred in concluding grounds
existed to terminate his parental rights under N.C.G.S. § 7B-1111(a)(1) because the
petitions failed to provide notice of this ground for termination and because the trial
court’s conclusion “was not supported by the findings or the evidence.” As we agree
with respondent-father’s substantive argument regarding the trial court’s conclusion,
we decline to reach his notice argument.
Though willful abandonment of a child may support termination of parental
rights under either N.C.G.S. § 7B-1111(a)(1) or (7), the analytical framework for
reaching such conclusion differs meaningfully between each ground. Under N.C.G.S.
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§ 7B-1111(a)(7), the court must make proper factual findings supporting a conclusion
that the respondent “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)
(2023) (emphasis added). In contrast, “[a] finding of neglect sufficient to terminate
parental rights” under N.C.G.S. § 7B-1111(a)(1) “must be based on evidence showing
neglect at the time of the termination proceeding.” In re Young, 346 N.C. at 248
(emphasis added).
Thus, in order to terminate a parent’s rights on the ground of neglect by abandonment, the trial court must make findings that the parent has engaged in conduct which manifests a willful determination to forego all parental duties and relinquish all parental claims to the child as of the time of the termination hearing.
In re C.K.C., 263 N.C. App. 158, 164 (2018) (cleaned up).
Here, the trial court’s factual findings refer to respondent-father’s conduct in
2018, 2022, and in the six-month period prior to the filing of the petition. Because
the trial court failed to make any findings regarding respondent-father’s conduct
demonstrating neglect by abandonment “at the time of the termination hearing,” In
re Young, 346 N.C. at 248, its conclusion that grounds existed to terminate
respondent-father’s parental rights under N.C.G.S. § 7B-1111(a)(1) is unsupported.
Accordingly, we vacate that portion of the trial court’s orders.
B. N.C.G.S. § 7B-1111(a)(6)
Respondent-father next argues that the trial court erred in concluding that
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grounds existed to terminate his parental rights under N.C.G.S. § 7B-1111(a)(6).
That subsection permits termination of parental rights when the petitioner
demonstrates that the respondent “is incapable of providing for the proper care and
supervision of the juvenile, such that the juvenile is a dependent juvenile within the
meaning of G.S. 7B-101, and that there is a reasonably probability that the
incapability will continue for the foreseeable future.” N.C.G.S. § 7B-1111(a)(6) (2023).
A “dependent juvenile within the meaning of G.S. 7B-101” is a juvenile “in need
of assistance or placement” because either “(i) the juvenile has no parent, guardian,
or custodian responsible for the juvenile’s care or supervision,” or “(ii) the juvenile’s
parent, guardian, or custodian is unable to provide for the juvenile’s care or
supervision and lacks an appropriate alternative child care arrangement.” N.C.G.S.
§ 7B-101(9) (2023). Our Supreme Court has reasoned that a juvenile is “not ‘in need
of assistance or placement’ at the time [a] petition [is] filed” if the juvenile is “in the
legal and physical custody of her mother.” In re K.R.C., 374 N.C. 849, 860 (2020)
(quoting N.C.G.S. § 7B-101(9) (2019)).
Here, respondent-father argues the trial court erred in concluding grounds
existed to terminate his parental rights under N.C.G.S. § 7B-1111(a)(6) because the
petitions failed to provide notice of this ground and because the findings and evidence
did not support such a conclusion. As we agree with respondent-father’s substantive
argument regarding the trial court’s conclusion, we decline to reach his notice
argument.
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It is undisputed that the juveniles were in the custody of petitioner-mother at
the time the petitions were filed. The petitions specifically alleged—and the trial
court specifically found—that “[p]etitioner . . . is the biological mother of the minor
child[ren] and resides with the minor child[ren]” at petitioner-mother’s home.
Because the juveniles were “in the legal and physical custody of [their] mother” at the
time the petitions were filed, they were not “ ‘dependent juvenile[s] within the
meaning of G.S. 7B-101’ as required to terminate respondent’s parental rights
pursuant to N.C.G.S. § 7B-111(a)(6).” In re K.R.C., 374 N.C. at 860 (quoting N.C.G.S.
§ 7B-101(9) (2019)). Accordingly, we vacate that portion of the trial court’s orders.
C. N.C.G.S. § 7B-1111(a)(7)
Finally, respondent-father argues that the evidence and factual findings did
not support the trial court’s conclusion that grounds existed to terminate his parental
rights under N.C.G.S. §7B-1111(a)(7). That subsection permits a trial court to
terminate an individual’s parental rights when the petitioner demonstrates the
respondent 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).
1. Factual Findings
Here, respondent-father argues that “[t]he findings and evidence did not show
a willful intent to abandon Cody, Janet, and Xia.” Specifically, respondent-father
challenges the trial court’s findings of fact 7(b), (c), (d), (g), (h), and (i).
Respondent-father first contends that the trial court misidentified the relevant
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time period in finding (b). We agree. Because the petitions were filed on 14 November
2023, the relevant six-month period was 14 May 2023 to 14 November 2023, not 14
November 2023 to 14 May 2024. However, a review of the record and transcripts in
this case demonstrates that the trial court’s characterization of the relevant time
period was a scrivener’s error which had no substantive impact on its reasoning or
conclusions. Respondent-father does not contend, and we do not believe, that this
error is ground for reversal of the orders.
Next, relying on In re N.D.A., 373 N.C. 71 (2019), respondent-father argues
that “[m]any of the findings” in (b), (c), (g), (h), and (i) “were ultimate findings and
conclusions of law” and that the “ultimate findings were not explained by evidentiary
findings of fact, which is a requirement of Rule 52(a)(1).” While we agree that
findings (b) and (c) are properly classified as conclusions of law, respondent-father’s
argument misapprehends the current state of the law and the fact-finding duties
imposed on trial courts.
Rule 52(a)(1) provides that “[i]n all actions tried upon the facts without a jury
or with an advisory jury, the court shall find the facts specially and state separately
its conclusions of law thereon and direct the entry of the appropriate judgment.”
N.C.G.S. § 1A-1, Rule 52(a)(1) (2023). Contrary to respondent-father’s contention
that trial courts are required to expressly explain ultimate findings with evidentiary
findings, our Supreme Court has stated that:
Rule 52(a) does not require a recitation of the evidentiary
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and subsidiary facts required to prove the ultimate facts, it does require specific findings of the ultimate facts established by the evidence, admissions and stipulations which are determinative of the questions involved in the action and essential to support the conclusions of law reached.
Quick v. Quick, 305 N.C. 446, 452 (1982), superseded in part by statute on other
grounds as stated in State v. Brice, 370 N.C. 244, 251 (2017).
Respondent-father’s reliance on In re N.D.A. is similarly misplaced. Although
In re N.D.A.’s statement that “an ultimate finding is a conclusion of law or at least a
determination of a mixed question of law and fact,” In re N.D.A., 373 N.C. at 76
(cleaned up), would require that ultimate findings be expressly explained by
evidentiary findings, our Supreme Court has clarified that In re N.D.A. “misused the
term ‘ultimate fact[.]’ ” In re G.C., 384 N.C. at 65 n.3. That is why our Supreme Court
“overturn[ed] [its] prior caselaw to the extent it misuses the term ‘ultimate fact,’ ”
and clarified that “an ultimate finding is a finding supported by other evidentiary
facts reached by natural reasoning.” Id.
In contrast, “any determination requiring the exercise of judgment or the
application of legal principles is more properly classified as a conclusion of law.” In
re Helms, 127 N.C. App. 505, 510 (1997) (citations omitted). Where a trial court
mislabels “conclusions of law as findings of fact, findings of fact which are essentially
conclusions of law will be treated as such on appeal.” In re J.O.D., 374 N.C. 797, 807
(2020) (cleaned up).
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Here, findings (b) and (c) state in relevant part that “[t]he actions of
Respondent constitute a willful abandonment of the minor child[ren]” and that
“[c]lear and convincing evidence exists that the father willfully abandoned the minor
child[ren.]” The determination of whether a parent has willfully abandoned their
child under N.C.G.S. § 7B-1111(a)(7) requires “the exercise of judgment” and “the
application of legal principles” and is therefore a conclusion of law, not a finding of
fact. As “findings” (b) and (c) are both essentially the trial court’s legal conclusion
that grounds existed to terminate respondent-father’s parental rights for willful
abandonment under N.C.G.S. § 7B-1111(a)(7), we review that conclusion in the
subsequent section.
Our review of the properly classified findings of fact examines “whether the
record of the proceedings demonstrates that the trial court, through processes of
logical reasoning, based on the evidentiary facts before it, found the ultimate facts
necessary to dispose of the case.” In re J.N.J., 286 N.C. App. 599, 605 (2022) (quoting
In re J.W., 241 N.C. App. 44, 48–49 (2015)). “If a trial court’s finding of fact is
supported by clear, cogent, and convincing evidence, it will be deemed conclusive even
if the record contains evidence that would support a contrary finding.” In re S.R., 384
N.C. at 520 (cleaned up). “Unchallenged findings are deemed to be supported by the
evidence and are binding on appeal.” In re S.C.L.R., 378 N.C. 484, 487 (2021).
Here, our review of the record demonstrates that the following portions of the
trial court’s findings are either properly supported or unchallenged on appeal:
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d. The court finds that there was no communication between the father and the minor child, no letters, no visits, no financial support nor anything that would indicate an intent to maintain a relationship with the minor child during the relevant period.
e. Looking outside the relevant period in relation to the father’s intent, the court finds that the father sent $30.00 to pay for the minor’s shoes in 2018 and that he sent two letters in 2022.
f. The mother had the same address where the father dropped off the $30.00 and sent the two letters and the mother had the same phone number since the father has been incarcerated.
g. The father’s incarceration may have been an impediment to the father’s ability to reach out and maintain a relationship, however, the father clearly had the ability and knowledge to communicate with the minor child. . . . .
h. Previous to this most recent incarceration, the father made little attempt to maintain a relationship with the minor child.
i. The father has displayed a pattern of conduct indicating his lack of intent to maintain a relationship with the minor child.
Finding (d), that there was no communication, letters, visits, or financial
support during the relevant time period, is supported by uncontroverted evidence.
All the evidence, including respondent-father’s testimony, demonstrated that there
was no communication, letters, visits, or financial support in the relevant six-month
period. Findings (e) and (f) are unchallenged and are therefore binding. See In re
S.C.L.R., 378 N.C. at 487 (“Unchallenged findings are deemed to be supported by the
evidence and are binding on appeal.”).
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The portion of finding (g) discussing respondent-father’s “ability and
knowledge to communicate with the minor child[ren]” is supported by clear, cogent,
and convincing evidence. Both petitioner-mother and respondent-father testified
that he had previously sent letters to the children at petitioner-mother’s address and
respondent-father testified he still knew where to send letters to communicate with
the children. Based on this evidence, and considering the unchallenged finding (f)
that petitioner-mother “had the same address where the father . . . sent the two
letters,” the ultimate finding that respondent-father had the ability and knowledge
to communicate with the children is naturally reached through the process of logical
reasoning. See In re J.N.J., 286 N.C. App. at 605.
Respondent-father specifically challenges the second portion of finding (g):
“The father testified that he maintained phone contact with another minor child and
he has previously sent this minor child letters so he had the ability to maintain
contact despite his incarceration.” We agree with respondent-father that the
italicized portion of finding (g) does not qualify as a factual finding because it merely
recites respondent-father’s testimony absent any indication that the trial court
deemed such testimony credible. See In re A.E., 379 N.C. 177, 185 (2021)
(“[R]ecitations of the testimony of each witness do not constitute findings of fact by
the trial judge absent an indication concerning whether the trial court deemed the
relevant portion of the testimony credible.” (cleaned up)). However, as described
above, the unitalicized portion of this finding is supported by clear, cogent, and
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convincing evidence.
Finally, findings (h) and (i) are supported by petitioner-mother’s testimony
regarding respondent-father’s conduct prior to and during his most recent
incarceration. To the extent that finding (i) constitutes an ultimate finding, it is a
finding naturally reached by the process of logical reasoning based upon the
evidentiary facts before the trial court. Accordingly, we conclude that findings (d),
(h), (i), and all but the recitation of testimony portion of finding (g) are properly
supported and conclusive on appeal.
2. Conclusions of Law
Based on these factual findings, the trial court concluded that “[t]here are
grounds to terminate the parental rights of Respondent father, including willful
abandonment for six months” and that petitioner-mother “has proved by clear and
convincing evidence the facts stated above, and Respondent’s parental rights with the
minor child[ren] should be permanently terminated on the grounds stated in N.C.
Gen. Stat. §§7B-1111[a](1)(6) and (7).” As we have concluded that the trial court’s
conclusions as to N.C.G.S. § 7B-1111(a)(1) and (6) must be vacated, we address only
the trial court’s conclusion under N.C.G.S. § 7B-1111(a)(7). We review this conclusion
of law de novo. See In re K.N., 381 N.C. 823, 827 (2022).
Respondent-father argues that the trial court’s conclusion that grounds
existed to terminate his parental rights under N.C.G.S. § 7B-1111(a)(7) is
unsupported because: (1) “the factual findings do not explain or provide the basis for
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terminating Father’s parental rights”; (2) “the findings did not reflect the evidence
that Mother did not want Father to maintain a relationship with the children”; (3)
“[c]ontrary to the court’s findings about Father’s abilities and intentions, if the ability
to communicate and retain some type of relationship had existed during the present
incarceration, Father would gladly work on parental duties and claims”; and (4) “[i]n
this case, just as in In re D.E.M., the findings which were supported by evidence failed
to show that Father willfully abandoned Cody, Janet, and Xia.” We address each
argument in turn.
Respondent-father’s first contention—that the supported factual findings do
not provide a basis for terminating his parental rights—is without merit. Willful
abandonment is a ground for terminating parental rights, see N.C.G.S. § 7B-
1111(a)(7), and “[d]espite incarceration, a parent failing to have any contact [during
the determinative six-month period] can be found to have willfully abandoned the
child[.]” In re D.J.D., 171 N.C. App. 230, 241 (2005) (cleaned up) (emphasis added).
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. Willful intent is an integral part of abandonment and this is a question of fact to be determined from the evidence. If a parent withholds that parent’s presence, love, care, the opportunity to display filial affection, and willfully neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child.
In re S.R., 384 N.C. at 526 (cleaned up).
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A parent’s withholding of love and care must be voluntary and willful to
support a conclusion of abandonment. Because the respondent-parent’s willfulness
is the touchstone of this analysis, our relevant case law distills into two questions: (1)
what options did the respondent-parent have to display parental affection during the
six-month period, and (2) did the respondent-parent exercise those options. If the
absence of such parental affection is caused by “one parent actively thwart[ing] the
other parent’s ability to have a relationship with their child,” either by eliminating
the other parent’s options or by frustrating their ability to exercise them, then a trial
court does not err in concluding no grounds exist to terminate parental rights under
N.C.G.S. § 7B-1111(a)(7). Id. at 527.
Where the respondent-parent is incarcerated during the determinative
six-month period prior to the filing of the petition, “the circumstances attendant to a
parent’s incarceration are relevant when determining whether a parent willfully
abandoned his or her child, and this Court has repeatedly acknowledged that the
opportunities of an incarcerated parent to show affection for and associate with a
child are limited.” In re D.M.O., 250 N.C. App. 570, 575 (2016). “Our precedents are
quite clear—and remain in full force—that incarceration, standing alone, is neither
a sword nor a shield in a termination of parental rights decision.” In re D.E.M., 257
N.C. App. 618, 621 (2018) (quoting In re M.A.W., 370 N.C. 149, 153 (2017)).
“Although a parent’s options for showing affection while incarcerated are
greatly limited, a parent will not be excused from showing interest in his child’s
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welfare by whatever means available.” Id. (cleaned up). Under these circumstances
a trial court must “address, in light of his incarceration, what other efforts
[respondent-father] could have been expected to make to contact [mother] and the
juvenile.” Id.
Here, because respondent-father was incarcerated during the determinative
six-month period, the trial court was required to enter factual findings that addressed
“in light of his incarceration, what other efforts [he] could have been expected to make
to contact” petitioner-mother and the juveniles. Id. The trial court’s relevant
unchallenged or supported findings are:
d. The court finds that there was no communication between the father and the minor child, no letters, no visits, no financial support nor anything that would indicate an intent to maintain a relationship with the minor child during the relevant period.
e. Looking outside the relevant period in relation to the father’s intent, the court finds that the father sent $30.00 to pay for the minor’s shoes in 2018 and that he sent two letters in 2022.
f. The mother had the same address where the father dropped off the $30.00 and sent the two letters and the mother had the same phone number since the father has been incarcerated.
g. The father’s incarceration may have been an impediment to the father’s ability to reach out and maintain a relationship, however, the father clearly had the ability and knowledge to communicate with the minor child. . . . [H]e has previously sent this minor child letters so he had the ability to maintain contact despite his incarceration.
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These findings—though by no means exhaustive, comprehensive, or even
thorough—adequately address: (1) in light of his incarceration, what options
respondent-father had to show interest in his children’s welfare, and (2) whether
respondent-father exercised those options. The trial court acknowledged that
respondent-father’s options were limited due to his incarceration but that he could
have continued to send letters as he had previously. Because respondent-father failed
to exercise that option, he failed to “show[ ] interest in his child’s welfare by whatever
means available,” In re D.E.M., 257 N.C. App. at 621 (cleaned up), and the trial
court’s factual findings support its conclusion that grounds existed to terminate
respondent-father’s parental rights under N.C.G.S. § 7B-1111(a)(7).
Respondent-father’s second contention, that “the findings did not reflect the
evidence that Mother did not want Father to maintain a relationship with the
children,” is misplaced. While petitioner-mother’s statements that she had “tried to
prevent him from seeing the children . . . when he first got incarcerated” and that she
was “not willing to put money on [his] books to speak to the kids,” could support a
finding that petitioner-mother did not want respondent-father to maintain a
relationship with the children, the trial court was not required to make any such
finding. Whatever petitioner-mother wanted is largely irrelevant to resolving the
issue of whether respondent-father willfully abandoned his children in the six-month
period prior to the filing of the petition. See N.C.G.S. § 7B-1111(a)(7). Because
petitioner-mother testified that she “never stopped him from writing” and “never
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stopped the children from writing,” her admissions that she “tried to prevent him
from seeing the children” and stopped funding his prison account do not amount to
“actively thwarting the other’s parent’s ability to have a relationship with their child.”
In re S.R., 384 N.C. at 527 (emphasis added).
Respondent-father’s third argument, that “if the ability to communicate and
retain some type of relationship had existed during the present incarceration, [he]
would gladly work on parental duties and claims,” similarly amounts to a contention
that petitioner-mother actively thwarted his ability to communicate and retain a
relationship with his children. The clear, cogent, and convincing evidence and the
trial court’s supported factual findings demonstrate that respondent-father: (1) knew
the children’s address, (2) was capable of sending letters to the children at that
address, (3) sent at least two letters to the children since his 2018 incarceration
began, and (4) did not send letters or otherwise attempt communication with the
children in the determinative six-month period. “Although a parent’s options for
showing affection while incarcerated are greatly limited, a parent will not be excused
from showing interest in his child’s welfare by whatever means available.” In re
D.E.M., 257 N.C. App. at 621 (cleaned up).
Finally, respondent-father argues that “[i]n this case, just as in In re D.E.M.,
the findings which were supported by evidence failed to show that Father willfully
abandoned Cody, Janet, and Xia.” We disagree.
In In re D.E.M., this Court vacated an order terminating the respondent’s
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parental rights in part because the trial court’s findings did “not address, in light of
his incarceration, what other efforts [respondent] could have been expected to make
to contact [the mother] and the juvenile.” Id. In doing so, this Court relied on our
precedent in In re D.M.O. where we vacated and remanded a similar order in part
because the trial court “made no findings indicating that it considered the limitations
of respondent-mother’s incarceration, or that respondent-mother was able but failed
to provide contact, love, or affection to her child while incarcerated.” Id. (quoting In
re D.M.O., 250 N.C. App. at 578).
As described in detail above, the orders here do not suffer from the same defect
present in the orders in In re D.E.M. and In re D.M.O. The trial court’s findings
expressly addressed respondent-father’s incarceration, the limitations such
incarceration placed upon his ability to show interest in his children, and the options
he could have—but did not—exercise to show such interest. Accordingly, we affirm
the trial court’s conclusion that grounds existed to terminate respondent-father’s
parental rights for willful abandonment under N.C.G.S. § 7B-1111(a)(7).
V. Conclusion
The trial court’s findings do not support its conclusions that grounds existed to
terminate respondent-father’s parental rights under N.C.G.S. § 7B-1111(a)(1) or (6)
and we therefore vacate those portions of the three orders. However, because the
trial court’s supported factual findings in turn support its conclusion that grounds
existed to terminate respondent-father’s parental rights under N.C.G.S.
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§ 7B-1111(a)(7), we affirm those portions of the three orders.
VACATED IN PART, AFFIRMED IN PART.
Judges HAMPSON and GORE concur.
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