In re J.G.L. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1070
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
IN THE MATTER OF:
J.G.L. and L.D.L. Caldwell County
Nos. 12 JT 154-55
Appeal by father from order entered 29 May 2013 by Judge
Mark Killian in Caldwell County District Court. Heard in the
Court of Appeals 27 January 2014.
Wilson, Lackey & Rohr, P.C., by Timothy J. Rohr, for
petitioner-appellee mother.
Richard Croutharmel for respondent-appellant father.
STEELMAN, Judge.
Where the trial court found that father’s conduct evinced a
settled purpose to forego all parental duties and relinquish all
parental claims for a time period well in excess of six months
prior to the filing of the termination of parental rights
action, the trial court did not err in concluding that father
willfully abandoned the children. Where father failed to
present any evidence suggesting his trial counsel had a conflict
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of interest, father has not established a claim for ineffective
assistance of counsel. The trial court did not err in denying
father’s Rule 60(b) motion.
I. Factual and Procedural Background
J.D.L. (father) and A.N.S. (mother) were married 2 January
2002, but divorced 5 March 2008. On 23 January 2009, the trial
court entered a child custody order, which granted joint custody
of J.G.L. and L.D.L. (the children) to mother and father but
gave primary physical custody to mother. The order set forth a
visitation schedule for father. The order also required the
parties to allow each other reasonable telephone contact with
the children, to keep each other advised of their addresses and
telephone numbers, and to keep each other apprised of the
children’s school and extracurricular activities.
On 16 October 2012, mother filed petitions to terminate
father’s parental rights to the children. The petitions alleged
willful abandonment of the children, pursuant to N.C. Gen. Stat.
§ 7B-1111(a)(7), as the grounds for termination of parental
rights. Father filed responses to the petitions on 19 November
2012, denying the material allegations of the petitions. The
trial court held a hearing on the petitions on 1 May 2013.
Father did not appear at the hearing, although he was
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represented by counsel. On 29 May 2013, the trial court entered
an order terminating father’s parental rights to the children.
Father filed a motion pursuant to Rule 60(b) of the North
Carolina Rules of Civil Procedure on 6 May 2013, seeking relief
from the court’s order terminating his parental rights. Father
asserted that he mistakenly believed that the hearing was
scheduled for 6 May 2013, and that his absence from the hearing
was due to his inadvertent mistake and constituted excusable
neglect. Father asked the trial court to set aside its order
terminating his parental rights and hold a new hearing. The
trial court heard father’s Rule 60(b) motion on 25 June 2013,
and denied the motion by order entered 12 July 2013.
On 23 July 2013, father filed notice of appeal from the
order terminating his parental rights and the order denying his
Rule 60(b) motion. Mother filed a motion to dismiss father’s
appeal of the order terminating parental rights in the trial
court as being untimely. By order entered 12 September 2013,
the trial court dismissed father’s appeal of the order
terminating his parental rights.
Father filed a petition for writ of certiorari with this
Court on 3 October 2013, seeking review of the trial court’s
order terminating his parental rights. Mother did not file a
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response to father’s petition for certiorari. Due to the
importance of issues involving the termination of parental
rights, we exercise our discretion and allow father’s petition
for writ of certiorari and address the merits of his arguments
pertaining to the order terminating his parental rights. See In
re I.S., 170 N.C. App. 78, 84-85, 611 S.E.2d 467, 471 (2005).
II. Termination of Parental Rights
In his first argument, father contends that the trial court
erred in concluding that he abandoned the children. We
disagree.
A. Standard of Review
“The standard for review in termination of parental rights
cases is whether the findings of fact are supported by clear,
cogent and convincing evidence and whether these findings, in
turn, support the conclusions of law.” In re Clark, 72 N.C.
App. 118, 124, 323 S.E.2d 754, 758 (1984). A 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[.]”
N.C. Gen. Stat. § 7B-1111(a)(7) (2013). “‘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 T.C.B., 166
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N.C. App. 482, 485, 602 S.E.2d 17, 19 (2004) (quoting In re
Adoption of Searle, 82 N.C. App. 273, 276, 346 S.E.2d 511, 514
(1986)).
[A]bandonment imports any wilful or
intentional conduct on the part of the
parent which evinces a settled purpose to
forego all parental duties and relinquish
all parental claims to the child . . . .
[I]f a parent withholds his presence, his
love, his care, the opportunity to display
filial affection, and wilfully neglects to
lend support and maintenance, such parent
relinquishes all parental claims and
abandons the child . . . .
In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813 (1982)
(citations and quotation marks omitted).
B. Analysis
On appeal, father’s argument is limited to whether the
trial court’s findings of fact support its conclusion of law
that father abandoned the children. We hold that the trial
court’s findings of fact support its conclusion that father
willfully abandoned the children. Mother’s petition was filed
16 October 2012; the trial court found that father had not had
any contact with the children since 23 July 2011, and that
father’s last in-person contact with the children was in May
2011. This contact was more than six months prior to the filing
of mother’s petition.
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Moreover, the court found that prior to his last contact
with the children, father’s visitation with the children had
steadily become less regular. The court further found that
father had never been involved with the children’s schooling.
The trial court also found that mother continued to reside at
the same home since the entry of the 2009 custody order. Father
at all times knew where and how to contact the children, but
purposefully and deliberately chose not to do so. The trial
court’s findings “evince[] a settled purpose to forego all
parental duties and relinquish all parental claims to the
[children,]” Apa, 59 N.C. App. at 324, 296 S.E.2d at 813, and
support its conclusion of law that father willfully abandoned
the children as defined by N.C. Gen. Stat. § 7B-1111(a)(7).
This argument is without merit.
III. Ineffective Assistance of Counsel
In his second argument, father contends that he received
ineffective assistance of counsel at the hearing on his Rule
60(b) motion. Father contends that a conflict existed with his
trial counsel arising out of the failure of his trial counsel to
advise him of the court date for the termination of parental
rights hearing. We disagree.
A. Standard of Review
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“To prevail in a claim for ineffective assistance of
counsel, respondent must show: (1) her counsel's performance was
deficient or fell below an objective standard of reasonableness;
and (2) her attorney's performance was so deficient she was
denied a fair hearing.” In re J.A.A., 175 N.C. App. 66, 74, 623
S.E.2d 45, 50 (2005).
B. Analysis
Father argues that at the Rule 60(b) hearing, he testified
that his trial counsel’s office telephoned him and informed him
that the termination of parental rights hearing would be held on
6 May 2013. Father contends that his failure to attend the
termination of parental rights hearing was due solely to his
counsel’s mistake. Father further contends that his counsel
attempted to conceal the mistake and had a conflict of interest
with father at the Rule 60(b) hearing.
Father’s motion for a relief pursuant to Rule 60(b) was
premised upon father’s “mistake, inadvertence, and/or excusable
neglect,” due to his mistaken belief that the termination of
parental rights hearing was to be held on 6 May 2013. At the
Rule 60(b) hearing, counsel elicited from father testimony that
father was absent from the termination of parental rights
hearing due to this mistaken impression of the date. Father
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contends that trial counsel’s failure to suggest that its own
conduct was the cause of this misunderstanding was evidence of
counsel’s conflict. However, the trial court found in its Order
Denying Rule 60 Motion that:
10. Respondent’s attorney notified
Respondent by email of the proper court
date, May 1, 2013.
11. The Respondent did not check his email
between March 6, 2013, and May 3, 2013.
12. Between March 2013, and May 1, 2013,
Respondent had physical problems with a
herniated disk in his back and was going
through a separation from his wife.
Respondent relies on his wife to keep up
with his court dates.
. . .
15. Between March 6, 2013, and May 3, 2013,
Respondent had no contact with his attorney.
Respondent claims to have tried to telephone
his attorney’s office. Respondent further
did not follow up with a meeting with the
guardian ad litem, even though the guardian
ad litem was willing to accommodate
Respondent’s schedule and meet on a
Saturday.
. . .
17. It was incumbent upon the Respondent to
maintain communication and contact with his
attorney given the serious nature of this
proceeding, to wit, the termination of his
parental rights to these two juveniles.
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The trial court therefore concluded that there was no
excusable neglect, inadvertence or mistake on father’s part,
that he failed to raise a meritorious defense, and that his
motion should be denied. Father does not challenge the trial
court’s findings of fact based on this hearing, but rather
contends that the trial court “should have recognized the
conflict of interest[.]” Findings of fact that are not
challenged are binding on appeal. Koufman v. Koufman, 330 N.C.
93, 97, 408 S.E.2d 729, 731 (1991). We therefore hold that the
trial court’s findings that father failed to maintain contact
with trial counsel, that it was incumbent upon father to
maintain contact, and that it was father’s failure to maintain
contact, and not any excusable neglect or mistake, which caused
father to miss the termination of parental rights hearing, are
binding upon this Court. These findings support the trial
court’s conclusion that there was no excusable neglect, and that
father’s motion for relief pursuant to Rule 60(b) should be
denied.
This argument is without merit.
AFFIRMED.
Judges HUNTER, ROBERT C. and BRYANT concur.
Report per Rule 30(e).