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In re C.B.C

Supreme Court of North Carolina

September 27, 2019


         Appeal pursuant to N.C. G.S. § 7B-1001(a1)(1) from an order entered 13 December 2019 by Judge Monica M. Bousman in District Court, Wake County. This matter was calendared in the Supreme Court on 11 September 2019 but determined on the records and briefs without oral argument pursuant to Rule 30(f) of the North Carolina Rules of Appellate Procedure.

          Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for petitioner-appellees.

          J. Thomas Diepenrock for respondent-appellant father.

          HUDSON, JUSTICE.

         Respondent appeals from the trial court's order terminating his parental rights to his minor child, C.B.C. (Catherine), [1] on the grounds of neglect and willful abandonment. We affirm.

         Respondent is the biological father of Catherine and petitioners are the maternal grandparents. In 2010, respondent and Catherine's biological mother, J.F., were involved in a relationship when J.F. became pregnant with Catherine. In March 2011, before Catherine's birth, respondent was convicted of felony theft charges and began serving a 15 month sentence.

         J.F. gave birth to Catherine on 26 June 2011, and moved in with petitioners in July 2011. During respondent's incarceration, J.F. brought Catherine to visit him in prison "a few" times, and she sent him pictures of Catherine. Respondent finished serving his sentence in June 2012.

         After his release, respondent had limited visitation with Catherine until J.F. passed away from a suspected accidental drug overdose on 7 July 2012. Following J.F's death, respondent and petitioners became involved in a custody dispute, and petitioners were granted temporary custody of Catherine, with respondent having visitation. On 19 November 2015, the trial court entered a permanent child custody order granting petitioners legal and physical custody of Catherine and ordering that respondent have no right to visitation. At the time the order was entered, respondent was incarcerated for felony breaking and entering and misdemeanor assault and had a projected release date of 16 October 2016. In the decretal section of the custody order, the trial court provided that respondent may petition the court for visitation after his release from incarceration as long as he could demonstrate to the court that his ongoing substance abuse and mental health issues had been appropriately addressed. The custody order also provided that respondent may continue to communicate in writing with Catherine, and that petitioners "shall deliver all appropriate communications" to Catherine.

         On 4 March 2016, petitioners filed a petition to terminate respondent's parental rights alleging the grounds of dependency and willful abandonment. See N.C. G.S. § 7B-1111(a)(6) and (7) (2017). Respondent participated in the hearing held 13 July 2017 and opposed the termination of his parental rights. On 21 September 2017, the trial court entered an order denying the petition. The trial court found that respondent "ha[d] consistently attempted to assert custodial rights with respect to [Catherine] and ha[d] consistently desired to maintain a relationship with her." The trial court also found that there was no evidence that respondent's substance abuse issues rendered him incapable of providing for Catherine's care, and that respondent's "periodic imprisonments [did] not constitute a 'disability' or clear, cogent and convincing evidence of incapability."

         On 31 August 2017, respondent was charged with multiple felonies, including larceny of firearms and breaking and entering. Respondent spent approximately three weeks in jail before he posted bond. He remained out of jail from September 2017 through March 2018. In April 2018, respondent pled guilty to multiple felonies resulting from the August 2017 charges, and began serving his active sentence. Respondent's projected release date is in April 2022.[2]

         Petitioners filed a second petition to terminate respondent's parental rights on 12 June 2018 alleging the grounds of neglect, dependency, and willful abandonment. See N.C. G.S. § 7B-1111(a)(1), (6), and (7). Following a 30 October 2018 hearing, the trial court entered an order on 13 December 2018, finding that grounds existed to terminate respondent's parental rights based on neglect and willful abandonment, and that termination was in Catherine's best interests. Accordingly, the trial court terminated respondent's parental rights. Respondent gave timely notice of appeal to this Court pursuant to N.C. G.S. §§ 7A-27(a)(5) and 7B-1001(a1)(1) (2017).

         Our Juvenile Code provides for a two-stage process for the termination of parental rights. N.C. G.S. §§ 7B-1109, -1110 (2017). At the adjudicatory stage, the petitioner bears the burden of proving by "clear, cogent, and convincing evidence" the existence of one or more grounds for termination under section 7B-1111(a) of the General Statutes. N.C. G.S. § 7B-1109(f). "If [the trial court] determines that one or more grounds listed in section 7B-1111 are present, the court proceeds to the dispositional stage, at which the court must consider whether it is in the best interests of the juvenile to terminate parental rights." In re D.L.W., 368 N.C. 835, 842, 788 S.E.2d 162, 167 (2016) (citing In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614–15 (1997); N.C. G.S. § 7B-1110).

         We review a trial court's adjudication under N.C. G.S. § 7B-1109 "to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law." In re Montgomery, 311 N.C. 101, 111, 316 S.E.2d 246, 253 (1984) (citation omitted). The trial court's conclusions of law are reviewable de novo on appeal. In re S.N., 194 N.C.App. 142, 146, 669 S.E.2d 55, 59 (2008), aff'd per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009) (citation omitted).

         Respondent first argues that the trial court erred in concluding grounds existed to terminate his parental rights based on ...

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