In re N.D.A., 373 N.C. 71 (2019)

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Held:

Vacated and Remanded

Facts: This is a private TPR that was granted based on willful abandonment and neglect from which respondent father appeals, challenging the sufficiency of the facts to support the conclusions of law.
Standard of Review for TPR adjudication is based on whether the findings of fact are supported by clear, cogent, and convincing evidence and whether the findings support the conclusions of law. Conclusions of law are reviewed de novo.
Findings of fact
- Recitation of a witness’s testimony is not a finding of fact. The “finding” in the TPR order that father “testified that he attempted to set up visits with the child but could not get any assistance in doing so” without a determination of his credibility is not a finding of fact and must be disregarded. Sl.Op. at 6.
- The finding that father “had significant problems with substance abuse for many years” was supported by the evidence, specifically father’s testimony. Sl.Op. at 6.
- An ultimate finding of fact “ ‘ 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.’ “ Sl.Op. at 8-9 (citation omitted). The findings that (1) the child has been neglected by the father and (2) the father has willfully abandoned the child do not involve the exercise of judgment and are not findings. Their classification as such do not alter the need for the trial court to make factual findings sufficient to support a TPR ground.
Abandonment implies conduct on the part of a parent that manifests a willful determination to forego all parental duties and relinquish all parental claims to the child and is demonstrated by a parent withholding his presence, love, care, opportunity to display filial affection, and willful neglect to provide support and maintenance to the child. Willful intent is a question of fact.
- Under G.S. 7B-1111(a)(7) the determinative time period is the immediate six months preceding the filing of the petition although a court may consider a parent’s conduct outside that time period to evaluate a parent’s credibility and intentions. The court findings did not adequately address the willfulness of the father’s actions. The father’s unchallenged testimony showed he unsuccessfully attempted to make arrangements to visit the child and there was no determination regarding father’s credibility or findings about whether father, who was incarcerated, had the ability to contact the child or petitioner or pay financial support during the relevant period. The lack of findings addressing father’s ability, which goes to intent/willfulness, do not support the ultimate determination that father willfully abandoned the child.
- Under G.S. 7B-1111(a)(1), abandonment is included in the definition of neglect. Here, the TPR was based on current neglect (vs. past neglect and a likelihood of future neglect). The time period is not limited to the six months immediately preceding the filing of the petition, allowing the court to look at a more extended period of time. Abandonment based on neglect involves a parent’s conduct that demonstrates “willful neglect and refusal to perform the natural and legal obligations of parental care and support.” Sl.Op. at 16. The findings do not adequately address father’s willfulness. There were no findings that addressed whether father, who was incarcerated, had the ability to contact the child or petitioner, exercise visitation, or pay support.
Burden and court questioning of witnesses: At the adjudicatory stage of a TPR, the petitioner bears the burden of proof by clear, cogent, and convincing evidence that one or more alleged grounds exists. Under N.C.R. Evid. 614(b), the court “may interrogate witnesses, whether called by itself or by a party.” Sl.Op. at 20. “It is proper for the judge to propound competent questions to a witness [during a trial] in order to obtain a proper understanding and clarification of his testimony, or to bring out some fact that has been overlooked.” (citation omitted). Sl.Op. at 20. There was no bias against respondent or in favor of petitioner from the trial court’s questioning of witnesses regarding work schedules, reason for method of contacted respondent, nature and extent of contact between petitioner and respondent, dates and length of incarceration, and the number of attempted contacts with petitioner. Each question was relevant to the issue to be determined.