In re Z.J.W., 376 N.C. 760 (2021)

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Held:

Remanded in part

Vacated and Remanded in Part

Facts: Mother and father had two children and initially lived together in Buncombe County. There was a history of domestic violence in the home, and in 2010 or 2011, mother relocated with the daughter to Nash County. Father and son remained in Buncombe County. In 2018, DSS in Nash County filed a petition regarding the daughter, who was adjudicated abused and neglected. As part of that DSS case, father was contacted. He did not have a relationship with his daughter after she moved with mother to Nash County but expressed a desire to be involved. At the same time, Buncombe County DSS filed a petition regarding the son, who was adjudicated neglected. Father complied with his case plan. In the Nash County case, father was ordered to comply with the Buncombe case plan. Father was not ordered visitation with his daughter in part due to a misunderstanding as to whether the child’s therapist was making recommendations about visitation, which she did not do. Father participated in the Nash County court proceedings and DSS CFT meetings by telephone, although he did miss some. In 2019, DSS filed a TPR motion, which was granted on the grounds of neglect and willful abandonment. Father appeals both grounds.
RE: findings. Challenged findings of fact that are not supported by the evidence are disregarded. Additionally, findings for adjudication that are supported by evidence from the dispositional phase of the TPR are not considered. As the Court of Appeals has held, dispositional evidence should not be considered for adjudicatory findings. See In re Mashburn, 162 N.C. pp. 396 (2004). Findings of fact that are conclusions of law will be treated as such on appeal.
G.S. 7B-1111(a)(7) authorizes a TPR on willful abandonment in the immediately preceding 6 months prior to the filing of the TPR motion. Abandonment requires conduct that demonstrates a willful intent to forego all parental duties and relinquish all parental claims.
- During the determinative 6-month period, unchallenged findings show father made one child support payment, sent 4 emails to the child’s placement provider (maternal aunt) to ask about her well-being, attended a CFT meeting, and satisfied his case plan. The father’s failure to visit his daughter was not voluntary but was due to the restriction in the court order and confusion about the therapist’s role in making recommendations and should not be considered in determining whether the father willfully abandoned his daughter.
- Although father could have done more, the steps he did take are sufficient to preclude an adjudication of the ground of willful abandonment. The findings do not support he conclusion.
G.S. 7B-1111(a)(1) authorizes a TPR on the ground of neglect, which includes abandonment. Based on father’s actions, the findings do not support a neglect by abandonment theory.
G.S. 7B-1111(a)(1) also authorized a TPR on the ground of neglect. When the child and parent have been separated for a long period of time, the court looks to a showing of past neglect and the likelihood of future neglect. The trial court considers the parent’s conduct over an extended period of time including up to the time of the TPR hearing. Here, the juvenile was previously adjudicated neglected. When looking at the likelihood of repetition of neglect, the court appears to have focuses on father’s absence from his daughter’s life prior to the filing of the TPR motion and did not consider any evidence about events occurring after the TPR motion was filed such that the findings do not support a TPR on neglect. However, the record contains evidence that could support findings of future neglect. Vacated and remanded.