In re X.I.F., ___ N.C. App. ___ (February 19, 2025)
Held:
Affirmed in Part; Vacated in Part.
- Facts: Father appeals the termination of his parental rights as to three juveniles. The children have continuously lived with Mother since Mother and Father’s separation in 2012. Father has been incarcerated for most of the period since their separation and remains incarcerated serving a nine-year term with a release date in 2027. Since 2016, Father has had no communication or given support to the children other than sending two letters in 2022 and some money in 2018 to purchase shoes for one of the children. Mother filed the TPR. The trial court found grounds existed to terminate under G.S. 7B-1111(a)(1), (6), and (7). Father argues the court’s conclusions are unsupported by the findings or the evidence. This summary addresses the two grounds addressing abandonment, G.S. 7B-1111(a)(1) and (a)(7).
- Appellate courts review the adjudication of grounds to terminate parental rights to determine whether the trial court’s factual findings are supported by clear, cogent, and convincing evidence and whether the findings support the trial court’s conclusions of law.
- G.S. 7B-1111(a)(1) allows the trial court to TPR where the parent has abused or neglected the child as defined in G.S. 7B-101, including neglect by abandonment. G.S. 7B-1111(a)(7) allows the trial court to TPR where the parent has “willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition[.]” The analysis for neglect by abandonment under G.S. 7B-1111(a)(1) differs from the analysis for willful abandonment under G.S. 7B-1111(a)(7). To conclude neglect by abandonment under G.S. 7B-1111(a)(1), the court must consider evidence and make findings of the parent’s conduct constituting neglect by abandonment “at the time of the termination hearing.” Sl. Op. at 11. In contrast, the court considers and makes findings of the parent’s conduct in the six-month period immediately preceding the filing of the TPR petition when concluding whether willful neglect under G.S. 7B-1111(a)(7) exists.
- Abandonment exists “[i]f a parent withholds that parent’s presence, love, care, the opportunity to display filial affection, and willfully neglects to lend support and maintenance . . .” Sl. Op. at 20 (citation omitted).
- Incarceration is neither a sword nor a shield. In determining whether an incarcerated parent’s abandonment is willful and voluntary, appellate caselaw requires the trial court to analyze (1) the options the parent had to display parental affection during the determinative period and (2) whether the parent exercised those options. “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.” Sl. Op. at 21-22 (citation omitted) (emphasis in original). “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.” Sl. Op. at 22 (citation omitted).
- Rule 52(a)(1) requires the trial court to “find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.” The supreme court has held that “Rule 52(a) does not require a recitation of the evidentiary and subsidiary facts required to provide the ultimate facts[.]” Whereas “an ultimate finding is a finding supported by other evidentiary facts reached by natural reasoning[,]” “any determination requiring the exercise of judgment or the application of legal principles is more properly classified as a conclusion of law.” Sl. Op. at 14-15 (citations omitted). Conclusions of law mislabeled as findings by the trial court will be treated as conclusions of law on appeal. Conclusions of law are reviewed de novo.
- Here, while the trial court made findings as to Father’s conduct leading up to the petition, the trial court failed to make any findings as to Father’s conduct showing neglect by abandonment at the time of the TPR hearing. As a result, the conclusion that grounds existed to TPR under G.S. 7B-1111(a)(1) is unsupported by the findings and vacated.
- Father challenged findings as unsupported by the evidence; however, the findings were supported by clear and convincing evidence, including mother’s and father’s testimony. The trial court’s ultimate findings of Father’s ability and knowledge to communicate with the children and his pattern of conduct demonstrating his lack of intent to maintain a relationship with the children were naturally reached through logical reasoning based on the evidence before the court. The court is not required to explain the evidentiary basis for its ultimate findings. The portion of the finding reciting Father’s testimony regarding his continued contact with another child while incarcerated, without any indication the trial court considered the credibility of the statement, is disregarded. The trial court’s finding misstating the relevant six-month period under G.S. 7B-1111(a)(7) (as November to March rather than March to November) is a scrivener’s error that did not substantively impact the court’s reasoning or conclusions. Two challenged findings are conclusions of law and reviewed de novo.
- The findings support the court’s conclusion that grounds existed to TPR under G.S. 7B-1111(a)(7). The trial court found that despite Father’s incarceration, Father had the ability and knowledge to communicate with the children through letters, as he had previously done, but failed to do so during the determinative period. The court was not required to make findings as to Mother’s admission that she tried to prevent Father from seeing the children when he was not incarcerated and stopped funding his prison account. Mother’s wishes are “largely irrelevant” and her actions do not amount to “actively thwarting” Father’s ability to have a relationship with the children. Mother testified that she never stopped Father or the children from writing and the record shows Mother had the same address and phone number as previously used by Father to send two letters and once deliver money for shoes.
Category:
Termination of Parental RightsStage:
AdjudicationTopic:
Abandonment