In re: D.E.M.
In re: D.E.M.
Opinion
*618 Respondent ("Alberto") 1 appeals from an order terminating his parental rights. After careful review, we vacate and remand.
Alberto is the father of the juvenile D.E.M. ("Danny"). Petitioner ("Beryl") is Danny's mother. On 25 August 2015, Beryl filed a petition to terminate Alberto's parental rights. Beryl claimed that Alberto had no contact with Danny since February 2005, that Danny had resided exclusively with Beryl since his birth, and that Alberto had not provided consistent child support for Danny's care and maintenance. On 26 April 2017, the trial court entered an order terminating Alberto's parental rights pursuant to N.C.G.S. § 7B-1111(a)(7) (2017). Alberto filed timely notice of appeal.
*619 Alberto argues that the trial court erred by concluding that grounds existed to terminate his parental rights. We agree.
Every proceeding to terminate parental rights involves two distinct stages, the adjudication stage and the disposition stage.
In re D.H.
,
Pursuant to N.C.G.S. § 7B-1111(a)(7), the 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[.]" "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
,
*378
In re McLemore
,
Here, the relevant six-month period was between 25 February and 25 August 2015. The trial court made the following findings of fact to support its conclusion that Alberto abandoned the juvenile:
4. [Alberto] has never provided any financial support for the minor child.
*620 5. [Alberto] has had no contact with the minor child in many years.
6. Prior to the filing of the petition in this matter, [Alberto] has sent one letter to [Beryl] concerning the minor child. Since the filing of the Petition in this matter, [Alberto] has sent other letters to [Beryl] concerning the minor child.
7. [Alberto] has spent a significant portion of the minor child's life incarcerated.
8. There have been extended periods of time during the minor child's life, in which [Alberto] was not incarcerated, yet [he] had no contact, other than incidental contact, and no personal visitation nor overnight visitation, with the minor child during these times.
9. [Alberto] made the willful choice to commit the crimes for which he was incarcerated during the minor child's life.
10. [Alberto] made the willful choice during the minor child's life to have his probation revoked and serve active prison time, rather than to stay out of prison and continue on probation, when remaining on probation could have increased the likelihood and possible opportunities of his having a relationship with the minor child.
11. [Alberto] has, by his choices, willfully abandoned the minor child for at least six consecutive months immediately preceding the filing of this action.
Our review of the trial court's findings leads us to the determination that they are inadequate to support the court's conclusion that respondent willfully abandoned the juvenile. First, the trial court's findings do not specifically address Alberto's behavior within the relevant six-month period immediately preceding the filing of the petition as required to adjudicate willful abandonment. We note that none of the trial court's findings provide any dates. In particular, in finding number 6, the trial court found that Alberto sent Beryl a letter prior to her filing the petition, but the finding neglects to indicate whether this action occurred prior to or during the relevant six-month period.
Second, the trial court's findings are inadequate to support its ultimate finding that Alberto's abandonment of Danny was willful. Alberto notes that he was incarcerated throughout the relevant six-month period, and that Beryl refused to provide him with contact information *621 for herself or Danny. Thus, Alberto contends that his inability to contact Danny negates a conclusion of willfulness.
"Our precedents are quite clear-and remain in full force-that incarceration, standing alone, is neither a sword nor a shield in a termination of parental rights decision."
Matter of M.A.W
., 370 N.C.149, 153,
Here, the trial court's findings demonstrate that Alberto was incarcerated for a significant portion of the juvenile's life, including the relevant six-month period preceding the filing of the petition, and he was still incarcerated at the time of the termination hearing. Alberto testified that he wrote the juvenile multiple letters while in prison, but the court's findings only state that Alberto had no contact with the juvenile and provided no financial support. Assuming the trial court rejected Alberto's testimony that he wrote Danny letters while in prison, the trial court's findings nevertheless do not address, in light of his incarceration, what other efforts Alberto could have been expected to make to contact Beryl and the juvenile. This was an error. In
D.M.O.,
the respondent-mother was also incarcerated during the determinative six-month period under N.C.G.S. § 7B-1111.
See
There are further issues with the trial court's order, as it improperly mixes the court's factual findings with its conclusions of law in violation
*622
of Rule 52 of the North Carolina Rules of Civil Procedure. N.C. R. Civ. P. 52. Under Rule 52, a trial court "must avoid the use of mixed findings of fact and instead, separate the findings of fact from the conclusion of law."
Pineda-Lopez v. N.C. Growers Ass'n,
Consequently, we conclude that the trial court failed to enter adequate findings of fact to demonstrate that grounds existed pursuant to N.C.G.S. § 7B-1111(a)(7) to terminate Alberto's parental rights, and failed to list its Findings of Fact and Conclusions of Law in accordance with Rule 52. Accordingly, we vacate the trial court's order and remand to the trial court for further findings and conclusions to support the ground upon which it relied to terminate Alberto's parental rights, and to reissue those findings and conclusions in accordance with Rule 52. "We leave to the discretion of the trial court whether to hear additional evidence."
In re F.G.J.
,
VACATED AND REMANDED.
Judges HUNTER, JR. and DILLON concur.
Pseudonyms are used to protect the identity of the juvenile and to promote ease of reading. See N.C. R. App. P. 3.1(b).
Reference
- Full Case Name
- In the MATTER OF: D.E.M.
- Cited By
- 43 cases
- Status
- Published
- Syllabus
- Parental Rights, Termination of Parental Rights, Wilful Abandonment, Findings of Fact in Terminating Parental Rights