In re: C.K.C. & W.T.C. , 263 N.C. App. 158 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-592
Filed: 18 December 2018
Catawba County, Nos. 17 JT 298-99
IN THE MATTER OF: C.K.C. and W.T.C., III
Appeal by respondent-father from order entered 19 March 2018 by Judge
Wesley W. Barkley in Catawba County District Court. Heard in the Court of Appeals
29 November 2018.
Stephen M. Schoeberle for petitioner-appellee grandmother.
Anné C. Wright for respondent-appellant father.
ZACHARY, Judge.
Respondent, the biological father of the juveniles C.K.C. (“Cooper”) and W.T.C.,
III (“Wes”),1 appeals from an order terminating his parental rights. After careful
review, we reverse.
I. Background
Respondent-father and the juveniles’ biological mother were married in
October 2007 and divorced in June 2015.2 Cooper was born in February 2009, and
Wes was born in February 2012. Petitioner “Karen Macintosh,”3 the juveniles’
1 Pseudonyms are used throughout the opinion to protect the identities of the juveniles and
other relevant parties, and for ease of reading.
2 The juveniles’ mother is not a party to this appeal.
3 A pseudonym.
IN RE: C.K.C. & W.T.C., III
Opinion of the Court
maternal grandmother, obtained an ex parte emergency custody order on 6 February
2014, in which she was granted temporary custody of Cooper and Wes. The maternal
grandfather and his wife (“the Duncans”)4 were subsequently allowed to intervene in
the custody matter.
On 14 January 2016, pursuant to a consent order, Petitioner-grandmother and
the Duncans were awarded joint legal custody of Cooper and Wes. Petitioner-
grandmother was granted primary physical custody of the children, and the Duncans
were granted secondary physical custody, consisting of visitation every other
weekend. Under the terms of the consent order, Respondent-father’s child support
obligation was terminated, and he was granted no visitation, although the order
stated that it did “not prevent any remaining party from allowing” Respondent-father
to have supervised visitation with the children. The consent order further provided
that Petitioner-grandmother “shall file an action to terminate the parental rights” of
Respondent-father, and “[a]ll parties agree that they shall not oppose said
termination.”
On 19 October 2017, Respondent-father filed a motion in the cause seeking to
modify the consent order. Respondent-father asserted that there had been a
significant change in circumstances since the entry of the order that affected the
children’s best interests. He claimed that Petitioner-grandmother had “attempted to
4 A pseudonym.
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totally alienate the minor children from [Respondent-father] and his family” and that
he had “a stable home, marriage, and family life, and [was] ready, willing, and able
to provide a stable home for the minor children.” Respondent-father sought “sole
care, custody, and control” of Cooper and Wes, subject to limited visitation with the
other parties. Approximately one month later, on 16 November 2017, Petitioner-
grandmother filed a petition to terminate Respondent-father’s parental rights to the
children based upon the grounds of neglect and willful abandonment. See N.C. Gen.
Stat. § 7B-1111(a)(1), (7) (2017).
After a hearing on 20 February 2018, the trial court entered an order on 19
March 2018 in which it determined that grounds existed to terminate Respondent-
father’s parental rights based upon neglect by abandonment and willful
abandonment. N.C. Gen. Stat. § 7B-1111(a)(1), (7). The trial court further concluded
that it was in the best interests of Cooper and Wes that Respondent-father’s parental
rights be terminated. Accordingly, the trial court terminated Respondent-father’s
parental rights. Respondent-father appeals.
II. Analysis
“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.” In re C.J.H., 240 N.C. App. 489, 497, 772 S.E.2d 82, 88
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(2015). We review the trial court’s legal conclusions de novo. In re A.B., 239 N.C.
App. 157, 160, 768 S.E.2d 573, 575 (2015), disc. review denied, 369 N.C. 182, 793
S.E.2d 695 (2016). “A finding of any one of the enumerated grounds for termination
of parental rights under [N.C. Gen. Stat.] 7B-1111 is sufficient to support a
termination.” In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003).
A. Willful Abandonment
Respondent-father first argues that the trial court erred in determining
grounds existed to terminate his parental rights based upon the ground of willful
abandonment, pursuant to N.C. Gen. Stat. § 7B-1111(a)(7). We agree.
A trial court may terminate parental rights where “[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). “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. The word
willful encompasses more than an intention to do a thing; there must also be purpose
and deliberation.” In re Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511,
514 (1986) (internal quotation marks and citations omitted).
As this Court has held,
[a] judicial determination that a parent willfully
abandoned [the parent’s] 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 [the
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parent’s] 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.
In re S.R.G., 195 N.C. App. 79, 87, 671 S.E.2d 47, 53 (2009), disc. review denied and
cert. denied, 363 N.C. 804, 691 S.E.2d 19 (2010). “Although the trial court may
consider a parent’s conduct outside the six-month window in evaluating a parent’s
credibility and intentions, the ‘determinative’ period for adjudicating willful
abandonment is the six consecutive months preceding the filing of the petition.” In
re D.E.M., __ N.C. App. __, __, 810 S.E.2d 375, 378 (2018).
In this case, Petitioner-grandmother filed her petition to terminate
Respondent-father’s parental rights on 16 November 2017; therefore, the relevant
six-month period was from 16 May 2017 to 16 November 2017. During that period of
time, on 19 October 2017, Respondent-father filed a motion in the cause seeking to
modify the consent order and requesting that he be granted the “sole care, custody,
and control” of Cooper and Wes. Respondent-father’s attempt to gain custody of
Cooper and Wes demonstrates that he did not intend to forego all parental duties and
relinquish all parental rights with regard to the juveniles. His motion thoroughly
averts the trial court’s determination that he willfully abandoned Cooper and Wes.
See In re D.T.L., 219 N.C. App. 219, 222, 722 S.E.2d 516, 518 (2012) (“Respondent’s
institution of a civil custody action undermines the trial court’s finding and conclusion
that he willfully abandoned the juveniles . . . and cannot support a conclusion that he
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had a willful determination to forego all parental duties and relinquish all parental
claims to the juveniles.”).
Additionally, several of the trial court’s findings of fact in support of its
conclusion that Respondent-father willfully abandoned Cooper and Wes rely on the
14 January 2016 consent order, including the following:
30. That a Consent Order was signed by all parties
particularly to this action, and particularly by
[Respondent-father] in Catawba County File No. 14 CVD
244.
31. That the language of that order is very specific as to all
manner of interactions with the children, including who
has custody, which in this case would be joint legal custody
between [Petitioner-grandmother] . . . and the [Duncan]
family, however primary would have been placed with
[Petitioner-grandmother], secondary with the [Duncan]
family.
32. That the Order is very specific as to visitation and as
to contact, and in fact indicates that [Respondent-father]
shall have no visitation with the minor children.
33. That the order indicates likewise that his child support
obligation will be terminated.
34. That the Order indicates that a Petition to Terminate
the Parental Rights of the Defendants shall be filed, and
that all parties agree they shall not oppose said
termination.
35. That [Respondent-father] signed that document, and
was represented by counsel at the time.
36. That by signing said Order, [Respondent-father], in
essence, in January 2016 agreed to close the door himself to
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his ability to parent these children, or to have the control or
capacity to parent the children.
....
40. That [Petitioner-grandmother] informed [Respondent-
father], pursuant to the Consent Order, that she was
exercising her authority and control to deny visitation; but
the denial adhered to the language in the Consent Order
that was signed by [Respondent-father].
(Emphasis added).
We agree that the consent order into which the parties entered provided that
Respondent-father’s child support obligations would be terminated, that he would
have no scheduled visitation, and that all parties—including Respondent-father—
would not oppose termination of his parental rights. However, we conclude that the
consent order, as construed by the trial court, is void as against public policy, insofar
as it constitutes an agreement that Respondent-father’s parental rights should be
terminated or that Respondent-father relinquished his parental rights to Wes and
Cooper.
Our statutes provide for a two-step judicial process in juvenile proceedings for
termination of parental rights: the adjudicatory stage and the dispositional stage.
See N.C. Gen. Stat. §§ 7B-1109, -1110 (2017). This statutorily prescribed process
must be followed. See In re Jurga, 123 N.C. App. 91, 96, 472 S.E.2d 223, 226 (1996)
(holding that a written declaration of voluntary termination of parental rights
contravened statutory procedures and was therefore ineffective). Moreover, an
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agreement to relinquish parental rights “is void as against public policy because it
removes from the court its power to assert the . . . objectives” of the termination of
parental rights statutes. Foy v. Foy, 57 N.C. App. 128, 131, 290 S.E.2d 748, 750 (1982)
(“In essence, the parental rights of a parent in his child are not to be bartered away
at the parent’s whim.”). Furthermore, the terms of the consent order do not meet the
statutory requirements for a consent to adoption under N.C. Gen. Stat. § 48-3-606 or
for relinquishment of parental rights to an agency under N.C. Gen. Stat. § 48-3-703.
See generally N.C. Gen. Stat. §§ 48-3-606, 48-3-703 (2017). Thus, to the extent that
the trial court relied upon the consent order in determining that Respondent-father
had willfully abandoned Cooper and Wes, particularly with respect to finding number
36 above, we conclude that the consent order, as construed, is void as against public
policy. Accordingly, we hold that the trial court erred by concluding that grounds
existed to terminate Respondent-father’s parental rights pursuant to N.C. Gen. Stat.
§ 7B-1111(a)(7).
B. Neglect by Abandonment
Respondent-father next contends that the trial court erred in concluding that
grounds existed to terminate his parental rights based upon neglect by abandonment
under N.C. Gen. Stat. § 7B-1111(a)(1). We agree.
Our juvenile code provides that a court may terminate parental rights upon a
finding that “[t]he parent has . . . neglected the juvenile” within the meaning of N.C.
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Gen. Stat. § 7B-101 (2017). N.C. Gen. Stat. § 7B-1111(a)(1). The definition of a
neglected juvenile includes one “who has been abandoned[.]” N.C. Gen. Stat. § 7B-
101(15). As explained above, “[a]bandonment 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.” Searle, 82 N.C. App. at 275, 346 S.E.2d
at 514. “Whether a biological parent has a willful intent to abandon his child is a
question of fact to be determined from the evidence.” S.R.G., 195 N.C. App. at 84,
671 S.E.2d at 51.
“A finding of neglect sufficient to terminate parental rights must be based on
evidence showing neglect at the time of the termination proceeding.” In re Young,
346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997). Thus, in order to terminate a parent’s
rights on the ground of neglect by abandonment, the trial court must make findings
that the parent has engaged in conduct “which manifests a willful determination to
forego all parental duties and relinquish all parental claims to the child” as of the
time of the termination hearing. See S.R.G., 195 N.C. App. at 84, 671 S.E.2d at 51.
Our previous analysis regarding the trial court’s determination that
Respondent-father willfully abandoned Cooper and Wes pursuant to N.C. Gen. Stat.
§ 7B-1111(a)(7) is relevant to the determination of whether Respondent-father
neglected the juveniles by abandonment pursuant to N.C. Gen. Stat. § 7B-1111(a)(1).
Respondent-father’s attempt to gain custody of Cooper and Wes in October 2017
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demonstrates that he did not intend to “forego all parental duties and relinquish all
parental claims to the juveniles” at the time of the termination hearing. See D.T.L.,
219 N.C. App. at 222, 722 S.E.2d at 518. Thus, we similarly conclude that
Respondent-father’s attempt to gain custody of the juveniles by filing a motion in the
cause precludes the trial court’s determination that Respondent-father neglected the
juveniles by abandonment. To the extent that the trial court relied on the 14 January
2016 consent order in concluding that Respondent-father had neglected the juveniles
by abandonment, for the reasons previously stated herein, we conclude that the
consent order, as construed by the trial court, is void as against public policy.
Therefore, we hold that the trial court erred by concluding that grounds existed
pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) to terminate Respondent-father’s
parental rights.
III. Conclusion
In conclusion, we hold that the trial court erred in terminating Respondent-
father’s parental rights based upon the grounds of willful abandonment and neglect
by abandonment. We therefore reverse the trial court’s order.
Respondent-father also challenges the trial court’s dispositional conclusion
that termination of his parental rights was in the best interests of Cooper and Wes.
However, given that we have reversed the trial court’s order on adjudicatory grounds,
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we need not address that argument. See In re Anderson, 151 N.C. App. 94, 99-100,
564 S.E.2d 599, 603 (2002).
REVERSED.
Judges CALABRIA and TYSON concur.
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