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In re D.E.M.

Court of Appeals of North Carolina

July 18, 2017

IN THE MATTER OF: D.E.M.

          Heard in the Court of Appeals 29 June 2017.

         Appeal by Respondent-Mother from order and amended order entered 29 September 2016 and 10 October 2016 by Judge David V. Byrd in District Court, Wilkes County No. 14 JT 91.

          Robert W. Ewing for Respondent-Appellant Mother.

          Vannoy, Colvard, Triplett & Vannoy, P.L.L.C, by Daniel S. Johnson, for Petitioners-Appellees.

          McGEE, Chief Judge.

         I. Background

         Respondent-Mother ("Mother") appeals from order and amended order terminating her parental rights as to the minor child, D.E.M., born in November 2011. We note the orders also terminated the parental rights of D.E.M.'s father ("Father"), who has not pursued an appeal. We affirm.

         Petitioners are D.E.M.'s paternal grandparents. They were awarded primary legal and physical custody of D.E.M. in a civil custody order entered 14 November 2013. See In re D.E.M., ___ N.C. App. ___, 782 S.E.2d 926, 2016 (unpublished). Although the custody order granted Mother and Father visitation with D.E.M., neither parent exercised their right to visitation after December 2013.

         Petitioners filed a petition to terminate the parental rights of Mother and Father on 29 May 2014. Id. at ___, 782 S.E.2d at 926. After a hearing, the trial court concluded that Mother and Father had willfully abandoned D.E.M., see N.C. Gen. Stat. § 7B-1111(a)(7) (2015), and terminated their parental rights by order entered 4 March 2015. D.E.M., ___ N.C. App. at ___, 782 S.E.2d at 926.

         Mother appealed. In an opinion filed 1 March 2016, this Court vacated the termination order on the ground that Petitioners lacked standing to bring an action for termination of parental rights under N.C. Gen. Stat. § 7B-1103(a) (2015). D.E.M., ___ N.C.App. at___, 782 S.E.2d at 926.

         Petitioners filed a new petition to terminate Mother's and Father's parental rights to D.E.M. on 8 March 2016. With regard to standing, the petition alleged that D.E.M. "has been in the sole custody of the Petitioners pursuant to an Order entered on November 14, 2013 in Wilkes County File No. 13 CVD 625."[1] Petitioners asserted three statutory grounds for termination of Mother's and Father's parental rights: (1) willful failure to pay for D.E.M.'s care, support, and education under N.C. Gen. Stat. § 7B-1111(a)(4); (2) dependency under N.C. Gen. Stat. § 7B-1111(a)(6); and (3) willful abandonment under N.C. Gen. Stat. § 7B-1111(a)(7).

         The trial court held a hearing regarding the petition on 13 September 2016, receiving testimony from Petitioners and Mother and a written report from D.E.M.'s Guardian ad Litem ("GAL"). In its order terminating the parental rights of Mother and Father, [2] the court adjudicated grounds for termination based on Mother's and Father's non-payment of support under N.C. Gen. Stat. § 7B-1111(a)(4) and willful abandonment of D.E.M. under N.C. Gen. Stat. § 7B-1111(a)(7). After considering the dispositional factors in N.C. Gen. Stat. § 7B-1110(a) and the recommendation of the GAL, the court further determined it was in D.E.M.'s best interest to terminate Mother's and Father's parental rights. Mother appeals. Father is not a party to this appeal.

         II. Standard of Review

         The standard of review from an order terminating parental rights is well-established:

Termination of parental rights proceedings are conducted in two stages: adjudication and disposition. "In the adjudication stage, the trial court must determine whether there exists one or more grounds for termination of parental rights under N.C. Gen. Stat. § 7B-1111(a)." This Court reviews a trial court's conclusion that grounds exist to terminate parental rights to determine whether clear, cogent, and convincing evidence exists to support the court's findings of fact, and whether the findings of fact support the court's conclusions of law. "If the trial court's findings of fact are supported by ample, competent evidence, they are binding on appeal, even though there may be evidence to the contrary." However, "[t]he trial court's conclusions of law are fully reviewable de novo by the appellate court." "It is the duty of the trial judge to consider and weigh all of the competent evidence, and to determine the credibility of the witnesses and the weight to be given their testimony."

In re C.J.H., 240 N.C.App. 489, 497-98, 772 S.E.2d 82, 88-89 (2015) (citations omitted).

The trial court examined respondent's history of sporadic contact with the juvenile in evaluating whether his 2014 requests for visitation were made in good faith. Although the trial court must examine the relevant six-month period in determining whether respondent abandoned the juvenile, the trial court may consider respondent's conduct outside this window in evaluating respondent's credibility and intentions. See . . . Gerhauser v. Van Bourgondien, 238 N.C.App. 275, 291, 767 S.E.2d 378, 389 (2014) (considering a party's conduct after determinative date established . . . in order to assess "the party's credibility and intentions"). In light of the trial court's findings on respondent's history of sporadic contact with the juvenile, we hold that clear, cogent, and convincing evidence supports the trial court's sub-conclusions . . . that respondent failed to make a good faith effort to visit [the child].

Id. at 503, 772 S.E.2d at 91 (citations omitted).

If the trial court determines that at least one ground for termination exists, it then proceeds to the disposition stage where it must determine whether terminating the rights of the parent is in the best interest of the child, in accordance with N.C. Gen. Stat. § 7B-1110(a). The trial court's determination of the child's best interests is reviewed only for an abuse of discretion. Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.

In re S.Z.H., N.C. App.,, 785 S.E.2d 341, 345 (2016) (citation omitted). Uncontested findings of fact are deemed to be supported by the evidence and are binding on appeal. In re H.S.F., 182 N.C.App. 739, 742, 645 S.E.2d 383, 384 (2007).

         III. Adjudication

         Mother argues the trial court erred in adjudicating the existence of grounds to terminate her parental rights under N.C. Gen. Stat. § 7B-1111(a)(7). We disagree.

         Mother challenges the trial court's conclusion that she willfully abandoned D.E.M. pursuant to N.C. Gen. Stat. § 7B-1111(a)(7). Under this provision, the trial court may terminate parental rights if "[t]he parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion [to terminate.]" N.C. Gen. Stat. § 7B-1111(a)(7) (2015). Petitioners filed their petition to terminate Mother's and Father's parental rights on 8 March 2016. Therefore, in reviewing the court's adjudication, we must primarily consider Mother's conduct during the period from 8 September 2015 to 8 March 2016. "Although the trial court must examine the relevant six-month period in determining whether respondent abandoned the juvenile, the trial court may consider respondent's conduct outside this window in evaluating respondent's credibility and intentions." C.J.H., 240 N.C.App. at 503, 772 S.E.2d at 91.

         "'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 Young, 346 N.C. 244, 251, 485 S.E.2d 612, 617 (1997) (citation omitted). "'Whether a biological parent has a willful intent to abandon his child is a question of fact to be determined from the evidence.'" In re S.Z.H., N.C. App. at ___, 785 S.E.2d at 347 (citation omitted). However,

[a] judicial determination that a parent willfully abandoned her child, particularly when we are considering a relatively short six month period, needs to show more than a failure of the parent to live up to her obligations as a parent in an appropriate fashion; the findings must clearly show that the parent's actions are wholly inconsistent with a desire to maintain custody of the child.

Id. (citation omitted).

         In support of its adjudication under N.C. Gen. Stat. § 7B-1111(a)(7), the trial court made the ...


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