In re K.P.W.

1

IN THE MATTER OF: K.P.W.

No. COA23-205

Court of Appeals of North Carolina

November 7, 2023

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Heard in the Court of Appeals 5 September 2023.

Appeal by respondent-father from Order entered 18 November 2022 by Judge David V. Byrd in Wilkes County No. 18-JT-108 District Court.

Erika Leigh Hamby, for Petitioner-Appellee Wilkes County Department of Social Services.

Edward Eldred, for Respondent-Appellant Father.

Michelle FormyDuval Lynch, for Guardian Ad Litem.

THOMPSON, Judge

Respondent-father appeals from the district court's 18 November 2022 order terminating his parental rights to his minor child K.P.W.^1[] Respondent-father contends that the district court violated the statutory mandates under N.C. Gen. Stat. § 7B-1105 regarding preliminary hearings for unknown parents to his prejudice such that the order terminating his parental rights must be vacated. After careful consideration, we agree with respondent-father's arguments and, accordingly, we vacate the order terminating his parental rights to K.P.W.

I. Factual Background and Procedural History

Respondent-father and K.P.W.'s biological mother^2[] never married but engaged in a romantic relationship for some period of time which resulted in the mother becoming pregnant with K.P.W. in 2014. At some point, the mother told respondentfather of the pregnancy and also stated that she planned to obtain an abortion. By the time of K.P.W.'s birth in July 2015, the relationship between the mother and respondent-father had ended and respondent-father was unaware that he had become the biological father of a child. The mother named another man as the father of K.P.W. on the child's birth certificate thus establishing that individual as K.P.W.'s putative father.^3[] For several years following the end of their relationship, the mother did not have any contact with respondent-father.

On 15 June 2018, the Wilkes County Department of Social Services (DSS) filed a neglect petition and obtained a non-secure custody order removing K.P.W. from the mother's care due to allegations involving domestic violence and substance abuse.^4[]The neglect petition named the man listed on K.P.W.'s birth certificate as the child's father and no questions regarding K.P.W.'s parentage were raised during that proceeding. Thereafter, an order adjudicating K.P.W. as a neglected juvenile was entered on 10 October 2018. At the first permanency planning review hearing in the matter held on 1 July 2019, DSS recommended termination of the parental rights of the mother and of K.P.W.'s putative father, due to their failure to make reasonable progress towards reunification, maintain employment, and submit to drug screens, among other concerns. The order entered at the conclusion of the review hearing relieved DSS from continuing reasonable efforts towards reunification, and ordered DSS to proceed in conformance with its recommendation for termination of parental rights to K.P.W.

For reasons not explained in the record on appeal, at the second permanency planning review hearing held on 30 September 2019, questions of paternity arose and the putative father of K.P.W. was ordered to submit to DNA^5[] testing. The district court also continued its previous orders from the first permanency planning review hearing and concluded the primary permanent plan for K.P.W. should remain adoption but changed the secondary plan from reunification to guardianship. In October 2019, DNA testing confirmed that the putative father of K.P.W. was not the child's biological father. As a result, on 26 November 2019 when DSS filed a termination of parental rights petition with regard to K.P.W., alleging statutory grounds of neglect pursuant to N.C. Gen. Stat. § 7B-1111(1) and abandonment pursuant to N.C. Gen. Stat. § 7B-1111(7), the petition listed the mother, the putative father, and "John Doe" as the respondent parents.

On 24 January 2020, DSS filed notice for a preliminary hearing to determine the identity of the unknown parent "John Doe" as provided in N.C. Gen. Stat. § 7B-1105. Three days later, on 27 January 2020, the mother disclosed to DSS for the first time that she believed respondent-father to be the biological father of K.P.W. DSS immediately began the process of attempting to locate respondent-father for purposes of notice and to afford him the opportunity of DNA testing to confirm his parental status as to K.P.W.

The district court proceeded to hold a preliminary hearing pursuant to N.C. Gen. Stat. § 7B-1105 on 10 February 2020, during which the court heard evidence from DSS regarding the mother's disclosure that respondent-father was K.P.W.'s biological father. DSS requested leave from the court to amend the termination petition if it was determined that respondent-father was in fact the biological father of K.P.W. DSS also sought the district court's approval to serve notice by publication for "John Doe"-K.P.W.'s biological father-who was believed but not confirmed to be respondent-father. At the conclusion of the hearing, the district court entered an order granting both of the requests made by DSS.

DSS was eventually able to locate respondent-father, who was incarcerated at the time, and on 29 April 2020, DSS contacted him by telephone to discuss the possibility that he could be the biological father of K.P.W. During that telephone call, respondent-father informed DSS that the mother had previously told him that he was K.P.W.'s father, although the record does not reflect when that exchange might have occurred. Respondent-father explained that he and the mother had been in casual contact via Facebook since around June 2018, and after seeing photographs of the child and noticing K.P.W.'s resemblance to himself, respondent-father believed from that time that K.P.W. might be his child. Respondent-father did not at that point, however, attempt to establish a relationship with K.P.W. or take steps to confirm or legitimize his status as K.P.W.'s biological father. DSS offered to facilitate DNA testing for respondent-father, but due to COVID-19 restrictions, respondent-father's intermittent periods of incarceration, and his failure to keep at least one scheduled appointment for testing, it was not until February 2021 that DNA testing confirmed that respondent-father is K.P.W.'s biological father. On 22 February 2021, DSS informed respondent-father of the DNA results.

On 18 June 2021, another permanency planning hearing was held, but despite the confirmation of respondent-father as the biological father of K.P.W. several months earlier, respondent-father did not receive notice of nor did he attend the hearing. At the conclusion of that hearing, the district court appointed counsel to represent respondent-father and directed DSS to amend the termination petition to include respondent-father.

On 13 October 2021, DSS filed an amended petition for termination of parental rights to K.P.W., which named the mother and respondent-father as the respondent parents. Respondent-father was served with the summons and petition on or about 18 October 2021, and on 29 October 2021, respondent-father filed a pro se answer seeking, inter alia, the ability to visit K.P.W. and to permit his family "to be in [the child's] life." Following a permanency planning hearing in December 2021, the district court found as fact that respondent-father "did not know [K.P.W.] existed until [he was] approached to be DNA tested."

On 1 April 2022, the district court held a hearing on the termination petition. Respondent-father was present and testified. On 18 November 2022, the district court entered an order in which it determined the existence of both neglect and abandonment as grounds that would permit the termination of respondent-father's parental rights to K.P.W. and further concluded that termination of his parental rights was in K.P.W.'s best interest. The termination order included the following pertinent findings of fact concerning respondent-father:

36. [DSS] was able to reach [respondent-father] via phone on April 29, 2020 and discussed his potential paternity of [K.P.W.] at that time. [Respondent-father] acknowledged that [the mother] had told him[ ] that he was the father of the minor child.

37. On February 22, 2021, the Social Worker called [respondent-father] while he was at Piedmont Correctional and spoke to him for approximately 70 minutes. At this time, she informed him that DNA had confirmed he was the minor child's father.

38. [Respondent-father] again confirmed he had felt sure she was his child, and asked [DSS] to send him pictures. [Respondent-father] also confirmed that he was aware of domestic violence in the home between [the mother] and her boyfriend.

39. [Respondent-father] put forth his mother, sisters, and brother as potential placements for [K.P.W.].

40. After learning that he was in fact [K.P.W.'s] father, he did not attempt to establish a bond with the child, or maintain contact with [DSS] to inquire as to her wellbeing.

41. [Respondent-father] did send two letters to the Social Worker to be sent to [K.P.W.]. One letter appeared to be addressed to another of [the mother]'s children, and the one that appeared to be for [K.P.W.] was addressed to [a similarly spelled name].

42. [Respondent-father] has been incarcerated in DAC and or county jail facilities for the majority of the time he has been known to [DSS]. When on occasion he was not incarcerated, it was difficult for the Social Worker to maintain contact with him.

43. [Respondent-father] had

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