An unpublished opinion of the North Carolina Court of Appeals does not constitute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



                               NO. COA13-1070
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 18 February 2014


IN THE MATTER OF:

      J.G.L. and L.D.L.                       Caldwell County
                                              Nos. 12 JT 154-55




      Appeal by father from order entered 29 May 2013 by Judge

Mark Killian in Caldwell County District Court.                     Heard in the

Court of Appeals 27 January 2014.


      Wilson, Lackey & Rohr, P.C.,                by   Timothy     J.   Rohr,    for
      petitioner-appellee mother.

      Richard Croutharmel for respondent-appellant father.


      STEELMAN, Judge.


      Where the trial court found that father’s conduct evinced a

settled purpose to forego all parental duties and relinquish all

parental claims for a time period well in excess of six months

prior   to    the   filing    of   the    termination       of   parental   rights

action, the trial court did not err in concluding that father

willfully     abandoned      the   children.        Where    father     failed    to

present any evidence suggesting his trial counsel had a conflict
                                         -2-
of interest, father has not established a claim for ineffective

assistance of counsel.           The trial court did not err in denying

father’s Rule 60(b) motion.

                I. Factual and Procedural Background

      J.D.L. (father) and A.N.S. (mother) were married 2 January

2002, but divorced 5 March 2008.                On 23 January 2009, the trial

court entered a child custody order, which granted joint custody

of J.G.L. and L.D.L. (the children) to mother and father but

gave primary physical custody to mother.                 The order set forth a

visitation schedule for father.                 The order also required the

parties to allow each other reasonable telephone contact with

the children, to keep each other advised of their addresses and

telephone    numbers,      and    to    keep    each   other   apprised    of   the

children’s school and extracurricular activities.

      On 16 October 2012, mother filed petitions to terminate

father’s parental rights to the children.                 The petitions alleged

willful abandonment of the children, pursuant to N.C. Gen. Stat.

§   7B-1111(a)(7),    as    the    grounds      for    termination   of   parental

rights.     Father filed responses to the petitions on 19 November

2012, denying the material allegations of the petitions.                        The

trial court held a hearing on the petitions on 1 May 2013.

Father    did   not     appear     at     the    hearing,      although   he    was
                                    -3-
represented by counsel.     On 29 May 2013, the trial court entered

an order terminating father’s parental rights to the children.

      Father filed a motion pursuant to Rule 60(b) of the North

Carolina Rules of Civil Procedure on 6 May 2013, seeking relief

from the court’s order terminating his parental rights.               Father

asserted   that   he   mistakenly   believed   that     the    hearing   was

scheduled for 6 May 2013, and that his absence from the hearing

was due to his inadvertent mistake and constituted excusable

neglect.      Father asked the trial court to set aside its order

terminating his parental rights and hold a new hearing.                  The

trial court heard father’s Rule 60(b) motion on 25 June 2013,

and denied the motion by order entered 12 July 2013.

      On 23 July 2013, father filed notice of appeal from the

order terminating his parental rights and the order denying his

Rule 60(b) motion.      Mother filed a motion to dismiss father’s

appeal of the order terminating parental rights in the trial

court as being untimely.       By order entered 12 September 2013,

the   trial    court   dismissed    father’s   appeal     of    the   order

terminating his parental rights.

      Father filed a petition for writ of certiorari with this

Court on 3 October 2013, seeking review of the trial court’s

order terminating his parental rights.         Mother did not file a
                                          -4-
response     to    father’s      petition      for    certiorari.         Due    to   the

importance        of   issues     involving     the     termination       of    parental

rights, we exercise our discretion and allow father’s petition

for writ of certiorari and address the merits of his arguments

pertaining to the order terminating his parental rights.                          See In

re I.S., 170 N.C. App. 78, 84-85, 611 S.E.2d 467, 471 (2005).

                       II. Termination of Parental Rights

    In his first argument, father contends that the trial court

erred   in    concluding         that    he    abandoned       the    children.        We

disagree.

                                A. Standard of Review

    “The standard for review in termination of parental rights

cases is whether the findings of fact are supported by clear,

cogent and convincing evidence and whether these findings, in

turn, support the conclusions of law.”                     In re Clark, 72 N.C.

App. 118, 124, 323 S.E.2d 754, 758 (1984).                       A trial court may

terminate     parental       rights      if     “[t]he    parent       has     willfully

abandoned    the       juvenile    for    at    least    six    consecutive       months

immediately preceding the filing of the petition or motion[.]”

N.C. Gen. Stat. § 7B-1111(a)(7) (2013). “‘Whether a biological

parent has a willful intent to abandon his child is a question

of fact to be determined from the evidence.’”                        In re T.C.B., 166
                                         -5-
N.C. App. 482, 485, 602 S.E.2d 17, 19 (2004) (quoting In re

Adoption of Searle, 82 N.C. App. 273, 276, 346 S.E.2d 511, 514

(1986)).

             [A]bandonment   imports    any   wilful  or
             intentional conduct on the part of the
             parent which evinces a settled purpose to
             forego all parental duties and relinquish
             all parental claims to the child . . . .

             [I]f a parent withholds his presence, his
             love, his care, the opportunity to display
             filial affection, and wilfully neglects to
             lend support and maintenance, such parent
             relinquishes   all   parental  claims  and
             abandons the child . . . .

In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813 (1982)

(citations and quotation marks omitted).

                                      B. Analysis

      On    appeal,     father’s      argument   is    limited     to   whether   the

trial court’s findings of fact support its conclusion of law

that father abandoned the children.                    We hold that the trial

court’s     findings     of    fact   support    its    conclusion      that   father

willfully abandoned the children.                Mother’s petition was filed

16 October 2012; the trial court found that father had not had

any   contact    with    the    children    since      23   July   2011,   and    that

father’s last in-person contact with the children was in May

2011.      This contact was more than six months prior to the filing

of mother’s petition.
                                         -6-
    Moreover, the court found that prior to his last contact

with the children, father’s visitation with the children had

steadily become less regular.                  The court further found that

father had never been involved with the children’s schooling.

The trial court also found that mother continued to reside at

the same home since the entry of the 2009 custody order.                 Father

at all times knew where and how to contact the children, but

purposefully and deliberately chose not to do so.                     The trial

court’s    findings    “evince[]     a    settled     purpose   to   forego   all

parental    duties    and   relinquish         all   parental   claims   to   the

[children,]” Apa, 59 N.C. App. at 324, 296 S.E.2d at 813, and

support its conclusion of law that father willfully abandoned

the children as defined by N.C. Gen. Stat. § 7B-1111(a)(7).

    This argument is without merit.

                III. Ineffective Assistance of Counsel

    In his second argument, father contends that he received

ineffective assistance of counsel at the hearing on his Rule

60(b) motion.     Father contends that a conflict existed with his

trial counsel arising out of the failure of his trial counsel to

advise him of the court date for the termination of parental

rights hearing.       We disagree.

                            A. Standard of Review
                                       -7-
    “To   prevail    in    a   claim    for   ineffective   assistance   of

counsel, respondent must show: (1) her counsel's performance was

deficient or fell below an objective standard of reasonableness;

and (2) her attorney's performance was so deficient she was

denied a fair hearing.”        In re J.A.A., 175 N.C. App. 66, 74, 623

S.E.2d 45, 50 (2005).

                                B. Analysis

    Father argues that at the Rule 60(b) hearing, he testified

that his trial counsel’s office telephoned him and informed him

that the termination of parental rights hearing would be held on

6 May 2013.      Father contends that his failure to attend the

termination of parental rights hearing was due solely to his

counsel’s mistake.        Father further contends that his counsel

attempted to conceal the mistake and had a conflict of interest

with father at the Rule 60(b) hearing.

    Father’s motion for a relief pursuant to Rule 60(b) was

premised upon father’s “mistake, inadvertence, and/or excusable

neglect,” due to his mistaken belief that the termination of

parental rights hearing was to be held on 6 May 2013.                At the

Rule 60(b) hearing, counsel elicited from father testimony that

father   was   absent   from    the    termination   of   parental   rights

hearing due to this mistaken impression of the date.                 Father
                               -8-
contends that trial counsel’s failure to suggest that its own

conduct was the cause of this misunderstanding was evidence of

counsel’s conflict.   However, the trial court found in its Order

Denying Rule 60 Motion that:

         10. Respondent’s        attorney    notified
         Respondent by email     of the proper court
         date, May 1, 2013.

         11. The Respondent did not check his email
         between March 6, 2013, and May 3, 2013.

         12. Between March 2013, and May 1, 2013,
         Respondent had physical problems with a
         herniated disk in his back and was going
         through   a   separation from his   wife.
         Respondent relies on his wife to keep up
         with his court dates.

         . . .

         15. Between March 6, 2013, and May 3, 2013,
         Respondent had no contact with his attorney.
         Respondent claims to have tried to telephone
         his attorney’s office.     Respondent further
         did not follow up with a meeting with the
         guardian ad litem, even though the guardian
         ad   litem   was   willing    to   accommodate
         Respondent’s   schedule   and    meet   on   a
         Saturday.

         . . .

         17. It was incumbent upon the Respondent to
         maintain communication and contact with his
         attorney given the serious nature of this
         proceeding, to wit, the termination of his
         parental rights to these two juveniles.
                                              -9-
       The    trial    court       therefore        concluded       that     there      was   no

excusable     neglect,       inadvertence           or    mistake    on     father’s       part,

that he failed to raise a meritorious defense, and that his

motion should be denied.                 Father does not challenge the trial

court’s      findings       of    fact   based      on     this   hearing,        but    rather

contends      that     the       trial   court      “should       have      recognized        the

conflict      of     interest[.]”          Findings          of     fact    that     are      not

challenged are binding on appeal.                        Koufman v. Koufman, 330 N.C.

93, 97, 408 S.E.2d 729, 731 (1991).                        We therefore hold that the

trial court’s findings that father failed to maintain contact

with   trial        counsel,      that   it    was        incumbent        upon    father     to

maintain contact, and that it was father’s failure to maintain

contact, and not any excusable neglect or mistake, which caused

father to miss the termination of parental rights hearing, are

binding      upon    this    Court.       These          findings    support       the     trial

court’s conclusion that there was no excusable neglect, and that

father’s motion for relief pursuant to Rule 60(b) should be

denied.

       This argument is without merit.

       AFFIRMED.

       Judges HUNTER, ROBERT C. and BRYANT concur.

       Report per Rule 30(e).
