In re A.M.H.B.

1

In the Matter of A.M.H.B.

No. COA22-711

Court of Appeals of North Carolina

July 5, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 10 May 2023.

Appeal by Respondent-Father from order entered 2 June 2022 by Judge R. Russell Davis in Pender County, No. 20 JT 33 District Court.

No brief filed on behalf of Petitioner-Appellee Mother.

Benjamin J. Kull for the Respondent-Appellant Father.

STADING, Judge.

Respondent-Father ("Father") appeals from the trial court's order terminating his parental rights in his minor child pursuant to N.C. Gen. Stat. § 7B-1111 (2022). For the reasons set forth below, we affirm the trial court's order.

I. Background

"Amelia"^[1] was born on 27 October 2013 to Father, Timothy Wayne Black, and Petitioner-Mother, Faith Shown Hollingsworth ("Mother"). At the time of Amelia's birth, Mother and Father were married and lived in Jacksonville, Florida. After Father's discharge from the Navy, the family moved to live near family in LaFollette Tennessee. In 2015, Mother and Amelia moved to Pender County, North Carolina, for a "better opportunity." Father was present in North Carolina for a short period of time; however, he became increasingly absent, due in part to his employment as a truck driver. After extended lapses in communication, Mother requested a divorce in late spring or early summer of 2015. In total, Father lived with Mother and Amelia "for about the first year and a half of [Amelia's] life...."

Following the divorce, Father resumed his residence in Tennessee and visited with Amelia in North Carolina on 28 October 2015. Father's last visit with Amelia was in November of 2015. Subsequently, communication between the parties further declined. In December of 2015, Mother contacted Father's girlfriend "to make sure [Father] gets time with [Amelia]." There was no response and between December 2015 and June 2016, Mother was unable to contact Father. In February 2017, the parties corresponded about their divorce and, on 2 August 2017, the parties communicated on the Facebook messaging platform discussing "signing [Amelia] over to [Mother]." There was no further communication between the parties until April of 2020. Father's brother who lives near Augusta, Georgia, visits with Amelia and communicates with Mother on Amelia's birthday.

On 10 August 2017, Mother married her current husband. Amelia resides with Mother, Mother's current husband, and two half-sisters in North Carolina, while Father resides in Tennessee. Communication finally resumed between the parties when Mother began "the process of filing" of this petition to terminate Father's parental rights. On 11 April 2020 Father inquired about visitation and sent a text message requesting Mother to tell his daughter "happy Easter." Mother responded by stating, in part: "This is a fair warning . . . leave me alone, don't text/call again." (ellipsis in original). Several hours later, Father repeated his request, to which Mother replied: "It's 2am. Don't text again."

On 12 June 2020, Mother filed this petition alleging that grounds exist to terminate Father's parental rights in Amelia. The petition alleged that Father (1) neglected Amelia, (2) willfully failed to pay for Amelia's care, support, and education, (3) is incapable of providing proper care and supervision for Amelia, and (4) willfully abandoned Amelia for at least six consecutive months prior to filing this petition. Mother's petition further alleged that neither Father, nor Father's family, have consistently visited Amelia since November 2015. Father filed his answer on 13 September 2021, denying that these grounds exist.

The trial court appointed a guardian ad litem ("GAL") for Amelia on 16 September 2020. The GAL produced a report that was admitted into evidence by the trial court. The report indicated that "[b]oth parties assign blame to each other for why [Father] and [Amelia] have not seen one another since November of 2015." Further, it provided that the GAL does not "believe that [Father] has taken enough action or made enough effort during [Amelia]'s life." {R. p. 28}. However, the report also states that the GAL is "not convinced that [Mother] has always kept the door between [Father] and [Amelia] as opening and inviting as she indicates." The GAL ultimately concluded that he did not believe it would be in Amelia's best interest for Father's rights to be terminated. {R. at 29}.

On 6 September 2022, the trial court conducted a bifurcated hearing, with an adjudication phase and a disposition phase. After hearing Mother's evidence during the adjudication phase, the trial court granted Father's motion to dismiss Mother's allegation that he is incapable of providing proper care and supervision for Amelia. Thereafter, the trial court found that "adequate grounds do exist to terminate the parental rights of . . . Father" under the three remaining grounds: neglect under N.C. Gen. Stat. § 7B-1111(a)(1); willful failure without justification to pay for care, support, and education under N.C. Gen. Stat. § 7B-1111(a)(4); and willful abandonment under N.C. Gen. Stat. § 7B-1111(7). Then, the trial court concluded that terminating parent-child relationship was in Amelia's best interest.

The trial court entered a written order, filed on 2 June 2022, terminating Father's parental rights. On 28 June 2022, Father filed a notice of appeal of the order terminating his parental rights. Father raises the following issues on appeal: (1) whether findings of fact nos. 24, 25, and 24 are actually conclusions of law; (2) whether the trial court failed to resolve a key conflict in the evidence regarding Mother hindering Father from having contact with Amelia; (3) whether the trial court made factual determinations that Father's acts or omissions were willful or manifested a willful intent to abandon Amelia; (4) whether the findings of fact establish that Father made a "willful determination to forego all parental duties and relinquish all parental claims to" Amelia; (5) whether the findings of fact and the evidence establish the statutorily required elements of N.C. G.S. § 7B-1111(a)(4); and (6) whether the trial court abused its discretion at disposition by failing to give any consideration to the GAL's opposition to termination.

II. Jurisdiction

This Court has jurisdiction over Father's appeal from the order terminating his parental rights pursuant to N.C. Gen. Stat. §§ 7A-27(b)(2) and 7B-1001(a)(7) (2023).

III. Analysis A. Standard of Review

On appeal, Father argues that the trial court erred by adjudicating grounds to terminate his parental rights to Amelia. "Our Juvenile Code provides for a two-step process for termination of parental rights proceedings consisting of an adjudicatory stage and a dispositional stage." In re Z.A.M., 374 N.C. 88, 94, 839 S.E.2d 792, 796 (2020) (citations omitted). "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 subsection 7B-1111(a)." In re B.C.B., 374 N.C. 32, 35, 839 S.E.2d 748, 751 (2020) (citation omitted). "If the petitioner meets her burden during the adjudicatory stage, 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." Id. at 35, 839 S.E.2d at 751-52 (citations omitted). This Court reviews a trial court's order terminating parental rights "to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law[.]" In re T.M.L., 377 N.C. 369, 371, 856 S.E.2d 785, 789 (2021) (citation omitted). The trial court's conclusions are subject to de novo review. Id. "Findings of fact not challenged by respondent are deemed supported by competent evidence and are binding on appeal. Moreover, we review only those findings necessary to support the trial court's determination that grounds existed to terminate respondent's parental rights." Id.

B. Findings of Fact as Conclusions of Law

First, Father notes that findings nos. 24, 25, and 27 are conclusions of law that were improperly classified as findings of fact. In its order, the trial court found:

24. That the Court finds that this minor child is neglected, and Respondent Father has failed to provide any financial support for the six (6) months prior to filing and that he abandoned his minor child.

25. That as a result of the above findings of the Court and the evidence presented, the Court finds that pursuant to N.C. G.S. [§] 7B-1111 et. seq., grounds exist to terminate the parental rights of the Respondent. ...

27. That grounds do exist for terminating the parental rights of the Respondent Father, Timothy Wayne Black.

"[A]ny determination requiring the exercise of judgment or the application of legal principles is more properly classified a conclusion of law," while a determination reached through "logical reasoning from the evidentiary facts" should be classified as a finding of fact. In re Helms, 127 N.C.App. 505, 510, 491 S.E.2d 672, 675 (1997) (citations omitted). This Court has held that a trial court's determination that statutory grounds exist for termination of parental rights is a conclusion of law. See id.; In re J.T.C., 273 N.C.App. 66, 73 847 S.E.2d 452, 458 (2020); In re S.Z.H., 247 N.C.App. 254, 261-62, 785 S.E.2d 341, 347 (2016). A trial court's classification of its determination as a finding or conclusion does not govern our analysis. In...