Byline: Jonathan Loo
Parental rights can't be terminated on the grounds of abandonment without a showing that the parent's conduct was willful, the North Carolina Court of Appeals has ruled.
The litigants in the case, referred to only as Mother and Father in the court's opinion, gave birth to a daughter, Ivey, in February 2014, when they were living together but not married. In 2015, the father forced the mother and Ivey out of the home and they have lived apart ever since. In 2016, the father showed up at the mother's home unannounced late one night and began banging on her door, threatening to kill her, and eventually choked and hit her.
As a result, the mother obtained a domestic violence protective order that remained in effect for one year. The DVPO ordered the father not to have any contact with the mother, but did not forbid contact with any minor children living with her. One month before the DVPO was set to expire, the mother filed a petition to terminate the father's parental rights to Ivey alleging failure to pay child support and abandonment.
A Robeson County District Court judge entered an order terminating the father's rights and concluding that he failed to pay child support and had abandoned Ivey. On Jan. 15, a unanimous Court of Appeals panel remanded the case because the court's order failed to show that the father's lack of contact with Ivey was willful.
Under state law, a trial court may terminate parental rights when the parent has "willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion." The evidence presented to the trial court showed that the father had not visited or seen Ivey since he told mother to leave in March 2015, provided any substantial financial support for her, or made any effort to visit her despite knowing where she was.
But Judge Chris Dillon, writing for the court, said that the findings of the trial court failed to show that the father acted willfully in his abandonment of Ivey, noting the effect of the DVPO on his ability to be present in Ivey's life.
"Because Ivey was only three years old, any...