An unpublished opinion of the North Carolina Court of Appeals does not constitute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


               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA15-153

                                Filed: 1 September 2015

Burke County, No. 14 JT 18

IN THE MATTER OF: M.J.C.J.


        Appeal by respondent from order entered 26 November 2014 by Judge J. Gary

Dellinger in Burke County District Court. Heard in the Court of Appeals 17 August

2015.


        No brief for petitioner-appellee mother.

        Miller & Audino, LLP, by Jeffrey L. Miller for respondent-appellant father.


        TYSON, Judge.


        Joshua Allen Jubin (“Respondent”) appeals from an order terminating his

parental rights to his child, M.J.C.J. We reverse the trial court’s order.

                                     I. Background

        Petitioner Lindsay Marie Icard Crowder (“Petitioner”) and Respondent

married on 12 May 2009 and separated on 7 November 2011. The juvenile, M.J.C.J.,

was born of the marriage in 2010. The parties divorced and Petitioner remarried. An

order entered 5 November 2012, which granted Petitioner sole custody of the juvenile,

allowed Respondent supervised visitation, and ordered him to pay child support.
                            IN THE MATTER OF: M.J.C.J.

                                   Opinion of the Court



      On 20 February 2014, Petitioner filed her petition to terminate Respondent’s

parental rights. At the close of the 6 November 2014 trial, the court found grounds

existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(4) (willful failure to support) and (7)

(willful abandonment) and terminated Respondent’s parental rights. Respondent

appeals.

      Respondent argues the trial court erred by concluding both grounds existed to

terminate his parental rights. We agree.

                                II. Standard of Review

             On appeal, our standard of review for the termination of
             parental rights is whether the trial court’s findings of fact
             are based on clear, cogent and convincing evidence and
             whether the findings support the conclusions of law.

             The trial court’s ‘conclusions of law are reviewable de novo
             on appeal.’


In re J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006) (citations and internal

quotation marks omitted).

                                      III. Issues

                            A. Willful Failure to Support

      In its order entitled, Adjudication and Disposition Order Terminating Parental

Rights, the trial court found

             [t]hat grounds for termination of the Respondent’s parental
             rights exist pursuant to North Carolina General Statutes
             §7B–1111(a)(4), in that the Respondent failed without


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                           IN THE MATTER OF: M.J.C.J.

                                  Opinion of the Court



             justification for a period of one year or more next preceding
             the filing of the petition to pay for the care, support, and
             education of the minor child . . . . .

      N.C. Gen. Stat. § 7B-1111(a)(4), permits termination of parental rights if:

             [o]ne parent has been awarded custody of the juvenile by
             judicial decree . . . and the other parent whose parental
             rights are sought to be terminated has for a period of one
             year or more next preceding the filing of the petition or
             motion willfully failed without justification to pay for the
             care, support, and education of the juvenile, as required by
             said decree or custody agreement.

N.C. Gen. Stat. § 7B–1111(a)(4) (2013) (emphasis added).

      In order to terminate a parent’s rights pursuant to N.C. Gen. Stat. § 7B–

1111(a)(4), the court must find by clear, cogent and convincing evidence that

Respondent willfully failed to pay child support. In re D.R.B., 182 N.C. App. 733, 735,

643 S.E.2d 77, 79 (2007). Willfulness “imports knowledge and a stubborn resistance.”

In re Matherly, 149 N.C. App. 452, 455, 562 S.E.2d 15, 18 (2002) (citation omitted).

To support a finding of willfulness, evidence must show “a parents’ ability, or

capacity” to complete the requisite statutory requirement. Id. This Court has held

the trial court had not “adequately addressed” willfulness with respect to N.C. Gen.

Stat. § 7B-1111(2) and (3) where the trial court failed to make “specific findings of

fact showing that a minor parent’s age-related limitations as to willfulness have been

adequately considered.” Id.




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                           IN THE MATTER OF: M.J.C.J.

                                   Opinion of the Court



      In this case, the trial court made no finding that Respondent’s failure to pay

support was willful. The trial court found Respondent had not paid any support since

the order for support was entered on 6 November 2012. The court found Respondent

began incarceration five months later on 27 April 2013. The court found Respondent

was not eligible for work release at the time of the hearing, but would become eligible

at a later date. The court also found that Respondent successfully completed the GED

program and received a certificate of readiness to assist his ability to obtain

employment upon his release from prison, while incarcerated.

      Notwithstanding these findings and with no other supporting findings, the

trial court simply stated “Respondent failed without justification” to pay for the care,

support and education of his minor child. “In the absence of a finding of willfulness,

the trial court’s order does not establish grounds for termination.” In re T.M.H., 186

N.C. App. 451, 455, 652 S.E.2d 1, 3 (citations omitted), disc. review denied, 362 N.C.

87, 657 S.E.2d 31 (2007). The trial court erred by terminating Respondent’s parental

rights without the requisite findings of fact under this statutory section.

                               B. Willful Abandonment

      Petitioner filed her petition to terminate Respondent’s rights on 20 February

2014. The trial court’s findings show Respondent was incarcerated during the entire

six-month statutory period.




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                           IN THE MATTER OF: M.J.C.J.

                                  Opinion of the Court



      This Court held that findings of fact on the issue of willfulness are required for

willful abandonment. In re D.R.B., 182 N.C. App. at 738, 643 S.E.2d at 80. This Court

also held “[i]ncarceration, standing alone, is neither a sword nor a shield in a

termination of parental rights decision.” In re P.L.P., 173 N.C. App. 1, 10, 618 S.E.2d

241, 247 (2005) (citation and quotation marks omitted), aff’d per curiam, 360 N.C.

360, 625 S.E.2d 779 (2006).

      While a parent’s imprisonment is relevant to the trial court’s determination of

whether a statutory ground for termination exists, it is not determinative. Id. at 13,

618 S.E.2d at 249.

             Where a respondent has been and continues to be
             incarcerated, our courts have prohibited termination of
             parental rights solely on that factor. Compare In re
             Shermer, 156 N.C. App. 281, 290–91, 576 S.E.2d 403, 409–
             10 (2003) (willfulness not shown under N.C. Gen. Stat. §
             7B–1111(a)(2) where the respondent was incarcerated but
             wrote letters and informed DSS that he did not want his
             parental rights terminated); In re Clark, 151 N.C. App.
             286, 565 S.E.2d 245 (termination of parental rights
             reversed where the father was incarcerated and evidence
             was insufficient to find that he was unable to care for his
             child), disc. rev. denied, 356 N.C. 302, 570 S.E.2d 501
             (2002); In re Yocum, 158 N.C. App. 198, 204, 580 S.E.2d
             399, 403 (respondent was incarcerated but also did nothing
             to emotionally or financially support and benefit his
             children), aff’d, 357 N.C. 568, 597 S.E.2d 674 (2003); In re
             Williams, 149 N.C. App. 951, 563 S.E.2d 202 (2002)
             (father’s parental rights were terminated because he was
             incarcerated and he failed to show filial affection for his
             child).




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                           IN THE MATTER OF: M.J.C.J.

                                   Opinion of the Court



In re D.R.B., 182 N.C. App. at 738, 643 S.E.2d at 81.

      The trial court made the following findings of fact:

             11. That the Petitioner refused to allow the minor child to
             visit the Respondent while he was incarcerated, after the
             Respondent requested to see the minor child.

             ....

             19. That the Respondent had tried to send a letter to the
             minor child in July 2013 and made a telephone call in May
             of 2013, with the Petitioner informing the Department of
             Corrections [sic] that she did not wish to have any contact
             with the Respondent, as that was ordered in her domestic
             violence case Order.

      Petitioner testified Respondent wrote her a letter in the summer of 2013

requesting her to bring M.J.C.J. to visit him in prison. Petitioner failed to respond to

Respondent’s letter. Instead, she contacted the prison to request Respondent send no

further mail to her.

      In this letter, Respondent testified he wrote to Petitioner, “my case manager

came and got me and told me that if I had any contact with my son or any contact

with her address or her phone number that they would have to come put me in

segregation, so since then I’ve had to stop.” No other findings were made regarding

Respondent’s attempts to maintain a relationship with M.J.C.J.

      The trial transcript, uncontroverted evidence, and findings of fact demonstrate

Respondent expressed a desire to maintain contact with his son, tried to set up

mechanisms to do so, and was prohibited from doing so by Petitioner. We hold the


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                                  Opinion of the Court



evidence and these findings fail to support a conclusion that Respondent

“manifest[ed] a willful determination to forego all parental duties and relinquish all

parental claims to the child.” In re Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514

(1986) (citation omitted).

      The trial court found Petitioner “refused to allow [M.J.C.J.] to visit Respondent

while he was incarcerated.” The trial court erred in concluding Respondent willfully

abandoned the juvenile pursuant to N.C. Gen. Stat. § 7B-1111 (a)(7).

                                   IV. Conclusion

      The trial court erred in concluding grounds existed to terminate Respondent’s

parental rights pursuant under either N.C. Gen. Stat. § 7B–1111(a)(4) (willful failure

to support) and (7) (willful abandonment).        The trial court’s order terminating

Respondent’s parental rights is reversed.

      Reversed.

      Judges GEER and STROUD concur.

      Report per Rule 30(e).




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