North Carolina Lawyers Weekly
Although the trial court was without jurisdiction to enter permanency planning orders in this case, there was nevertheless sufficient evidence to support the trial court’s termination of the respondent-father’s parental rights on the basis of willful abandonment.
We affirm the termination of respondent’s parental rights.
Because no abuse, neglect or dependency action was commenced in this case by the filing of a proper petition, the trial court was without subject-matter jurisdiction to enter its six permanency planning orders. Accordingly, this court will ignore the permanency planning orders and review whether there was clear, cogent and convincing evidence to support the trial court’s findings of grounds to terminate respondent’s parental rights without reference to any facts relating to his failure to comply with the terms of the void orders.
Where the mother relinquished the child to the Department of Social Services, DSS had standing to file the petition to terminate respondent’s parental rights.
Respondent sought to have his child placed with his sister in California, and he said he was going to allow his sister to handle the situation. Then, within the six months prior to the filing of the petition, (1) respondent moved to California without informing DSS of his move or providing DSS with his new address; (2) respondent failed to attend a permanency planning hearing on October 26, 2017, and admitted that his absence was “without justifiable excuse”; (3) respondent likewise failed to attend the January 25, 2018, permanency planning hearing, having moved to California three days prior; (4) respondent was a “no-show” at his scheduled child support hearing in January 2018; (5) respondent did not request a single visit with the minor child during the six-month period, despite the fact that he was allowed weekly visits; and (6) although the minor child’s foster parents allowed respondent to engage in Skype calls with the child, respondent did not make any such calls until after the termination petition was filed.
Such findings sufficiently demonstrate that respondent willfully acted in a manner “wholly inconsistent with a desire to maintain custody of the child.” Accordingly, we affirm the trial court’s determination that grounds existed to terminate respondent’s parental rights pursuant to G.S. § 7B-1111(a)(7).
Affirmed.
Dissent
(Hampson, J.) Because the grounds for termination alleged by DSS and adjudged by the trial court are inextricably intertwined with the invalid review hearing process, I would conclude the trial court erred in adjudicating grounds upon which to terminate respondent’s parental rights. I would, thus, reverse the trial court’s termination of parental rights order.
The evidence and findings do not clearly show actions wholly inconsistent with a desire to maintain custody of the child. The whole reason DSS is able to claim abandonment during a six-month period is because, for 33 months, DSS retained custody of the minor child under void orders including giving DSS discretion to dictate and limit respondent’s visitation, which it did.
The evidence reflects during this time, respondent was advocating for a relative placement of the minor child with his sister in California and was still seeking placement and unification with the minor child. While awaiting approval of an Interstate Compact on the Placement of Children assessment, respondent moved to California.
Respondent’s actions do not manifest a willful determination to forego all parental duties and relinquish all parental claims to the child. Thus, § 7B-1111(a)(7) does not provide a ground to terminate respondent’s parental rights in this case.
In re E.B. (Lawyers Weekly No. 011-272-19, 17 pp.) (Valerie Zachary, J.) (Toby Hampson, J., concurring in part & dissenting in part) Appealed from Rowan County District Court (Kevin Eddinger, J.) Jane Thompson for petitioner; Jeffrey Miller for respondent. N.C. App.
