In re E.Q.B.

891 S.E.2d 473

In the MATTER OF: E.Q.B., M.Q.B., S.R.R.B.

No. COA22-736

Court of Appeals of North Carolina.

Filed August 1, 2023

Samantha Belton, pro se, for petitioner-appellee mother.

Edward Eldred, for respondent-appellant father.

MURPHY, Judge.

When a parent challenges the trial court's conclusion that he willfully abandoned his children, the determinative period which we consider for this alleged abandonment is the six consecutive months prior to the filing of the petition to terminate parental rights. The obstruction of a parent's ability to contact the children is relevant to the court's consideration; however, the trial court may consider the parent's other actions and inactions in determining the impact of the obstruction on the parent's lack of contact. Here, the trial court's findings of fact support its conclusion that Father willfully abandoned his children, and these findings are supported by clear, cogent, and convincing evidence. Applying our current "single ground" line of jurisprudence, we need not address the other grounds for termination disputed by Father.

While we affirm the adjudication and termination of Father's parental rights, the trial court exceeded its authority by including a no-contact provision in its dispositional order that was unsupported by statutory provisions, and we must vacate this portion of the order.

BACKGROUND

On appeal, Respondent-Father challenges the trial court's adjudicatory order terminating his parental rights of his three minor children—E.Q.B. ("Dean"), M.Q.B. ("Barry"), and S.R.R.B. ("Allison")—and the trial court's dispositional order prohibiting Father from contacting his children. ¹ In August 2007, Father married Petitioner-Mother. While the parents lived in Georgia, they had two children: Dean in 2008 and Barry in 2010. At some time after Barry's birth in 2010, Father was incarcerated, and in 2013, during his incarceration, Mother and Father divorced. After Father's release in 2015, the parents reconciled for a brief period, and Mother became pregnant with the parents’ third child. During this period of reconciliation, the children would tell Mother that Father abused them when he was alone with them. After one incident, Mother took Dean to the hospital because he told her, "[D]addy kicked me in my back." Dean was treated for constipation after the kick. During another incident, Father tied up Mother's son, who was conceived with another man, with a belt. This caused that son pain and put him in fear.

When Father returned to prison in late 2016, the parents again separated. After this separation, Mother moved from Virginia to North Carolina, where she gave birth to the parents’ third child, Allison. During Father's incarceration, Mother maintained contact with Father to send him pictures of their children, and in turn, Father sent drawings and cards to the children. However, Mother did not take any of the children to visit him in prison. {T 17}

In 2019, some time after Father's release, Mother took the children to visit Father at his aunt's house in Virginia. She had learned from Father's aunt that he would be visiting her before he turned himself in for a probation violation. When Father first met Allison at his aunt's house, she was two years old.

After Father's visit with the children, the children expressed a desire to show their father their new toys and home in Wilkesboro. Mother allowed Father to live in her home with the children from November 2019 until December 2019, and the parents began seeing a pastor for counseling. During this time, Mother paid all of Father's expenses. On or about 1 January 2020, Mother and Father again separated.

After the parents’ separation in January 2020, Father called Mother from various numbers to threaten her and the children. During this time, Mother blocked the various numbers which Father used to contact her, until she ultimately changed her phone number. In March, April, and July 2020, "[Father] gave his aunt an unspecified amount of money to send to [Mother] for the children," and in July 2020, he "provided toys to his aunt to send to [Mother] for the children." Aside from these gifts, the parties dispute whether Father had any actual contact with his children after January 2020. The trial court found that since Mother and Father's separation in January 2020, Father has "made no attempt to see his children and has had no communication with them, even indirectly through his aunt" and, while he gave money and toys to his children through his aunt, he has "made no other efforts to convey messages, other gifts, or any evidence of his love and affection for the children."

From 15 September 2020 until 1 December 2020, Father was incarcerated for a probation violation. Upon his release, Father moved to Arizona "without any attempt to see the children" and was married to another woman on 6 December 2020.

In February 2021, in a separate action "[Mother] sought and obtained a temporary domestic violence protective order against [Father] due to [Father's] threatening to harm [Mother] and/or the children." On 24 March 2021, Mother filed the Petition to Terminate Parental Rights , alleging neglect and abandonment. On 19 April 2021, the trial court "issued a Domestic Violence Protective Order [("DVPO")] prohibiting [Father] from having contact with [Mother,]" giving "[Mother] temporary custody of the parties’ children[,]" and denying Father from having visitation with the children. The DVPO "did not ... prevent [Father] from having contact with the children nor providing gifts, support or other involvement in the children's lives." On 18 April 2022, Judge Robert J. Crumpton extended the DVPO until April 2024.

During the TPR hearing, Father testified that, if his parental rights were not terminated, he would file a custody complaint and sign a voluntary support agreement. On 4 May 2022, the trial court issued the Order Terminating Parental Rights and also ordered that "[Father] shall have no further communication or contact with any of [his] children." The trial court found that Allison was too young to express her wishes, but that Father's sons, 12 and 14 at the time, "do not want a relationship with [Father]." The trial court also found that "[Father] has had the means, opportunity, and ability to [file a custody complaint and/or sign a voluntary support agreement] at any time, but has made no effort to do so"; Father did not offer any excuse "for such lack of effort[,] nor has one been revealed by the evidence"; and "[Father] abandoned the children." The trial court concluded that "a ground exists to terminate [Father's] parental rights" pursuant to N.C.G.S. §§ 7B-1111(a)(1) and (a)(7) and N.C.G.S. § 7B-101. Father timely appealed.

ANALYSIS

Father argues that the trial court erred by finding that clear, cogent, and convincing evidence supported its findings of fact, and that these findings were sufficient to support its termination of his parental rights on three grounds: (1) abandonment, (2) neglect by abandonment, and (3) neglect by failure to provide proper care. Father also argues the trial court exceeded its authority by entering a no-contact order at the conclusion of the TPR hearing.

A. Termination of Parental Rights

We review the trial court's adjudicatory order to determine "whether the findings are supported by clear, cogent, and convincing evidence and the findings support the conclusions of law, with the trial court's conclusions of law being subject to de novo review." In re N.D.A. , 373 N.C. 71, 74, 833 S.E.2d 768 (2019), abrogated in part on other grounds , In re G.C. , 384 N.C. 62, 884 S.E.2d 658 (2023) (italics added) (citations and marks omitted). If we find the trial court's findings of fact are supported by clear, cogent, and convincing evidence and that any of the three grounds on which the trial court terminated Father's parental rights are supported by these findings of fact, we affirm the termination order:

The issue of whether a trial court's findings of fact support its conclusions of law is reviewed de novo. See State v. Nicholson , 371 N.C. 284, 288 [813 S.E.2d 840] (2018). However, an adjudication of any single ground for terminating a parent's rights under N.C.G.S. § 7B-1111(a) will suffice to support a termination order. In re B.O.A. , 372 N.C. 372, 380 [831 S.E.2d 305] (2019) ; accord In re Moore , 306 N.C. 394, 404 [293 S.E.2d 127] (1982). Therefore, if this Court upholds the trial court's order in which it concludes that a particular ground for termination exists, then we need not review any remaining grounds. In re C.J. , 373 N.C. 260, 263 [837 S.E.2d 859] (2020).

In re J.S., C.S., D.R.S., D.S. , 374 N.C. 811, 814-15, 845 S.E.2d 66 (2020) (citations omitted).

1. Abandonment

A trial court may terminate a party's parental rights when it finds that the parent "has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion[.]" N.C.G.S. § 7B-1111(a)(7) (2022). To find abandonment, the trial court must find that the parent's conduct "manifests a willful determination to forego all parental duties and relinquish all parental claims to the child[,]" but the relevant inquiry is limited to the statutory period of six months. In re C.B.C. , 373 N.C. 16, 19, 22, 832 S.E.2d 692 (2019) (quoting In re Young , 346 N.C. 244, 251, 485 S.E.2d 612 (1997) ). Thus, the dates at issue for this ground are 24 September 2020 to 24 March 2021.

On appeal, Father argues that "portions of findings 6, 22, 23, 24, and 26 are not supported by sufficient evidence." These findings read as follows:

6. [Mother] and [Father] were married to each other in August, 2007. They divorced in 2013. However, following the divorce, the parties reconciled in 2016 for a brief period during which [Allison] was conceived.

...

22. Since the time of the parties’ divorce in 2013, [Father] has made no effort to provide care for his children. Even

...