                IN THE SUPREME COURT OF NORTH CAROLINA

                                        No. 258A19

                                    Filed 1 May 2020

 IN THE MATTER OF: A.G.D. and A.N.D.



       Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from orders entered on 6 March

2019 by Judge Robert J. Crumpton in District Court, Ashe County. This matter was

calendared for argument in the Supreme Court on 25 March 2020 but determined on

the record and briefs without oral argument pursuant to Rule 30(f) of the North

Carolina Rules of Appellate Procedure.


       No brief filed for petitioner-appellee mother.

       Edward Eldred for respondent-appellant father.


       ERVIN, Justice.


       Respondent-father Aaron D. appeals from orders1 entered by the trial court

terminating his parental rights in his minor children A.G.D. and A.N.D. on the

grounds of willful abandonment.2 After careful consideration of respondent-father’s

challenge to the trial court’s termination orders in light of the record and the


       1 The trial court entered separate, although essentially identical, orders terminating
respondent-father’s parental rights in each of his two children. For ease of comprehension,
we will treat these separate orders as a single document throughout the remainder of this
opinion.
       2We will refer to A.G.D. and A.N.D. throughout the remainder of this opinion as
“Amy” and “Andy,” respectively, with these names being pseudonyms that we use for ease of
reading and to protect the privacy of the juveniles.
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                                     Opinion of the Court



applicable law, we conclude that the trial court’s termination orders should be

affirmed.

       Petitioner Amber D. and respondent-father were married in April 2008, with

Amy having been born to the parents in 2008 and with Andy having been born to the

parents in 2011. The parties separated in March 2013 after Amy revealed that

respondent-father had committed repeated sexual assaults against her. Along with

a number of other individuals, respondent-father was subsequently charged with

having committed multiple criminal acts of sexual abuse in the state and federal

courts, including crimes involving child pornography. On 27 May 2014, an order was

entered granting the mother sole legal and physical custody of the children, with

respondent-father being ordered to have no contact with them in the absence of a

further order of the court.3 A judgment granting an absolute divorce between the

parents was entered in July 2014.

       On 26 June 2018, the mother filed petitions seeking to have respondent-

father’s parental rights in the children terminated on the grounds that he had

willfully failed to pay any portion of the cost of the children’s care and that he had

willfully abandoned the children. See N.C.G.S. § 7B-1111(a)(4), (7) (2019). After a




       3 The custody and visitation order in question, which the trial court incorporated by
reference into the termination order, found as a fact that respondent-father was “currently
incarcerated in [the] Ashe County Jail” and was “under a [c]ourt [o]rder not to have any
contact with [Amy]” or “with a child under 18” and ordered that respondent-father “shall have
no contact with the [children] absent future [o]rders of this Court.”


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                                     Opinion of the Court



hearing held on 25 February 2019, the trial court entered orders terminating

respondent-father’s parental rights in both children on 6 March 2019,4 with this

decision resting upon determinations that respondent-father had willfully abandoned

Amy and Andy and that the termination of respondent-father’s parental rights in the

children would be in their best interests. Respondent-father noted appeals to this

Court from the trial court’s termination orders.

       In seeking to persuade us to grant relief from the trial court’s termination

orders, respondent-father argues that the trial court erred by determining that his

parental rights in the children were subject to termination on the grounds of willful

abandonment in light of the fact that he had been “prohibited . . . from having any

contact with his children.” According to respondent-father, “it was not within [his]

power to display his love and affection for his children because he was court-ordered

not to contact them.” In respondent-father’s view, the trial court’s reliance upon his

failure to seek relief from the earlier custody and visitation order was misplaced given

that the record contained no evidence tending to show that he had the ability to make

such a filing or that there had been “any change of circumstances warranting the

filing of” such a motion, citing Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d

250, 253 (2003) (stating that a party is only entitled to seek to have a prior custody




       4 The trial court did not find that respondent-father’s parental rights in the children
were subject to termination on the grounds of a willful failure to pay a reasonable portion of
the cost of the children’s care.


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                                        Opinion of the Court



order modified in the event that “there has been a substantial change in

circumstances and that the change affected the welfare of the child”), with it

“beg[ging] belief” that respondent-father “could have filed a custody motion every six

months for four years.” As a result, since respondent-father “was court-ordered not

to contact [his children] and could only have shown them filial affection by disobeying

a court’s order,” respondent-father contends that the trial court’s termination orders

should be reversed.5

       “We review a trial court’s adjudication under N.C.G.S. § 7B-1111 ‘to determine

whether the findings are supported by clear, cogent and convincing evidence and the

findings support the conclusions of law.’ ” In re E.H.P., 372 N.C. 388, 392, 831 S.E.2d

49, 52 (2019) (quoting In re Montgomery, 311 N.C. 101, 111, 316 S.E.2d 246, 253

(1984)). A trial court may terminate a parent’s parental rights in his or her children

based upon a determination that “[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.G.S. § 7B-1111(a)(7).6 In order to find that a parent’s parental

rights are subject to termination based upon willful abandonment, the trial court

must make findings of fact that show that the parent had a “purposeful, deliberative

and manifest willful determination to forego all parental duties and relinquish all


       5   The mother did not file a brief in defense of the trial court’s orders with this Court.
       6As a result of the fact that the termination petitions were filed on 26 June 2018, the
relevant six-month period for purposes of this case runs from 26 December 2017 until 26 June
2018.


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                                  Opinion of the Court



parental claims to [the child],” In re N.D.A., 373 N.C. 71, 79, 833 S.E.2d 768, 774

(2019) (quoting In re D.M.O., 250 N.C. App. 570, 573, 794 S.E.2d 858, 861–62 (2016)),

with a parent having abandoned his or her child for purposes of N.C.G.S. § 7B-

1111(a)(7) in the event that he “withholds his presence, his love, his care, the

opportunity to display filial affection, and willfully neglects to lend support and

maintenance . . . .” Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962).

      We further note that “[o]ur precedents are quite clear—and remain in full

force—that ‘[i]ncarceration, standing alone, is neither a sword nor a shield in a

termination of parental rights decision.’ ” In re M.A.W., 370 N.C. 149, 153, 804 S.E.2d

513, 517 (2017) (second alteration in original) (quoting In re P.L.P., 173 N.C. App. 1,

10, 618 S.E.2d 241, 247 (2005), aff’d per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006)).

Although “a parent’s options for showing affection while incarcerated are greatly

limited, a parent will not be excused from showing interest in [the] child’s welfare by

whatever means available.” In re C.B.C., 373 N.C. 16, 19–20, 832 S.E.2d 692, 695

(2019) (quoting In re D.E.M., 257 N.C. App. 618, 621, 810 S.E.2d 375, 378 (2018)). As

a result, our decisions concerning the termination of the parental rights of

incarcerated persons require that courts recognize the limitations for showing love,

affection, and parental concern under which such individuals labor while

simultaneously requiring them to do what they can to exhibit the required level of

concern for their children. In re K.N., 373 N.C. 274, 283, 837 S.E.2d 861, 867–68

(2020) (stating that “the extent to which a parent’s incarceration or violation of the


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                                  Opinion of the Court



terms and conditions of probation support a finding of neglect depends upon an

analysis of the relevant facts and circumstances, including the length of the parent’s

incarceration”).

      In the course of determining that respondent-father’s parental rights in the

children were subject to termination on the grounds of willful abandonment, the trial

court found as a fact that:

             5. [Respondent-father] was not present, but represented
                by Adam E. Anderson, Esq. [Respondent-father’s]
                Attorney informed the Court that he met with
                [respondent-father], but was unable to ascertain his
                wishes as to whether he wished to contest this action
                or not. [Respondent-father] also indicated he did not
                want to be present due to wanting to focus his efforts
                on “trial preparation” for his upcoming criminal
                matters. [Respondent-father’s] Attorney also reached
                out to [respondent-father’s] Federal Attorney, Anthony
                Martinez, who spoke with [respondent-father] and
                indicated that he was also unable to ascertain whether
                [respondent-father] wished to contest this matter.
                [Respondent-father’s] Attorney made a motion to
                continue this matter, which was denied. This matter
                was filed on June 26, 2018 and was noticed on well in
                advance of the trial date.

                   ....

             10. Respondent[-father] has not participated in the care of
                 the [children] in the last six (6) months and has not had
                 any meaningful interaction with the [children] since
                 March 8, 2013.

                   ....

             12. Respondent[-father] has pending criminal charges for
                 child related sex offenses which have prevented and


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                    Opinion of the Court



   prevent him from being a meaningful part of the
   [children’s] live[s].

13. [Amy] was four (4) years old when she disclosed that
    she was the victim of a sexual assault by her father.
    Upon disclosure, [the mother] made [respondent-
    father] leave the home and reported these allegations
    to the Ashe County Sheriff’s Department, who started
    an investigation. [Respondent-father] was charged
    with fourteen (14) counts of sexual assault in state
    court and eight (8) charges in Federal Court. [The
    mother] did not know the exact names of the charges
    but did testify that they related to these allegations
    and other sexual acts including child pornography.

14. The Federal investigation also led to [respondent-
    father] being charged along with others for sexual acts
    including child pornography. . . .

15. During the time these acts were committed, [Amy] was
    two to four (2–4) years old. Her brother, [Andy], was a
    newborn and nonverbal at the time.

   ....

18. [Respondent-father] has not seen or spoken to the
    children since March 8, 2013. About eighteen (18)
    months after this date, he contacted the [mother]
    requesting to see the children, but this is the only
    attempt he has made to contact the children.

   ....

22. . . . . [The children] have no bond with [respondent-
    father. Amy] refers to [respondent-father] as “Aaron”,
    not “dad”.

   ....

24. The [mother] was granted sole legal and physical
    custody of the children in 2014. [Respondent-father]


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                                 Opinion of the Court



                was not allowed further visitation “absent further
                orders of the Court.” [Respondent-father] has taken no
                action to file anything with the Court seeking visitation
                with the children.

            25. [Respondent-father] has not made any attempt to
                contact or see the [children] for the six (6) months next
                preceding the filing of this action and has not had any
                meaningful interaction with the [children] since March
                of 2013.

            26. [Respondent-father] has willfully abandoned the
                juvenile[s] for at least six (6) months immediately
                preceding the filing of this action. The actions of
                [respondent-father] manifest a willful determination to
                forego all parental duties and relinquish all parental
                claims regarding the minor children. This was done
                with purpose and deliberation.

            27. [Respondent-father’s] attorney argued that the actions
                of [respondent-father] were not willful due to his
                incarceration. The Court’s findings of willfulness are
                not based on incarceration alone.          Despite his
                incarceration, [respondent-father] is not excused from
                showing an interest in his children’s welfare. The
                Court has considered other actions that could have
                been taken by the [respondent-father]. He could have
                filed a motion for contact or visitation with the Court
                in the custody action.

            28. [Respondent-father] has at all times been able to
                ascertain the whereabouts of the [children.] [The
                mother] testified that [respondent-father’s] Federal
                Attorney came to her home a few months ago to ask
                questions regarding [respondent-father’s] criminal
                case.

Although these findings of fact are, admittedly, rather sparse, we believe that they

do suffice to support the trial court’s conclusion that respondent-father’s parental



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                                     Opinion of the Court



rights in the children were subject to termination for abandonment pursuant to

N.C.G.S. § 7B-1111(a)(7).

       In its termination orders, the trial court found7 as a fact that respondent-

father’s trial counsel “met with [respondent-father]” and “was unable to ascertain his

wishes as to whether he wished to contest this action or not.” In addition, the trial

court found that respondent-father’s trial counsel had “reached out” to the attorney

responsible for representing respondent-father in connection with his pending federal

criminal cases, who “was also unable to ascertain whether [respondent-father] wished

to contest this matter.” The trial court further found that Amy “was four (4) years

old when she disclosed that she was the victim of a sexual assault by” respondent-

father,8 who “was charged with fourteen (14) counts of sexual assault in state court

and eight (8) charges in [f]ederal court.” The trial court found that the mother “was

granted sole legal and physical custody of the” children by means of an order entered

in the District Court, Ashe County, with respondent-father not being “allowed further

visitation ‘absent further orders of the Court’ ”           The trial court also found that

respondent-father “has not participated in the care of the [children] in the past six (6)

months,” “has not had any meaningful interaction with the [children] since March 8,




       7 Respondent-father has not challenged any of the trial court’s findings of fact as
lacking in sufficient evidentiary support, rendering the trial court’s findings binding upon us
for purposes of appellate review.
       8The mother testified at the termination hearing that respondent-father had
admitted the truth of Amy’s accusation.


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                                  Opinion of the Court



2013,” “has taken no action to file anything with the Court seeking visitation with

the children,” and “has not made any attempt to contact or see the [children] for the

six (6) months next preceding the filing of this action and has not had any meaningful

interaction with the [children] since March of 2013.” The trial court found that,

approximately eighteen months after March 8, 2013, respondent-father had

“contacted [petitioner-mother] requesting to see the children,” with this having been

“the only attempt he has made to” do so.           In response to respondent-father’s

contention that “the actions of [respondent-father] were not willful due to his

incarceration,” the trial court found that, “[d]espite his incarceration, [respondent-

father] is not excused from showing an interest in his children’s welfare,” that “[t]he

Court ha[d] considered other actions that could have been taken by” respondent-

father, and that respondent-father “could have filed a motion for contact or visitation

with the Court in the custody action.” Finally, the trial court found that respondent-

father “ha[d] at all times been able to ascertain the whereabouts of the [children]”

and that the attorney that represented respondent-father in his federal criminal

cases “came to [petitioner-mother’s] home a few months ago to ask questions

regarding [respondent-father’s] criminal case.” Based upon these findings of fact, the

trial court concluded that respondent-father’s actions and inactions “manifest a

willful determination to forego all parental duties and relinquish all parental claims

regarding the” children and that “[t]his was done with purpose and deliberation.”




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                                    Opinion of the Court



      A careful review of the termination orders reveals that the trial court did not

conclude that respondent-father’s parental rights in the children were subject to

termination on the grounds of abandonment solely because he had failed to make

direct contact with them in violation of the custody and visitation order. On the

contrary, the trial court specifically noted that respondent-father was “not excused

from showing an interest in his children’s welfare” because of his incarceration and

found as a fact that, among other things, the only attempt that respondent-father had

made to contact the children had occurred when he communicated with petitioner-

mother about eighteen months after his last “meaningful” contact with them. In

other words, the trial court found that respondent-father had, with one exception,

done nothing to maintain contact with the mother, with whom the children lived and

who would know how they were doing,9 making this case similar to In re C.B.C., 373

N.C. at 23, 832 S.E.2d at 697 (noting, in describing the reasons that the trial court

had not erred by finding that a parent’s parental rights in a child were subject to

termination for abandonment, that the trial court had found that the parent “did not

contact [the child’s custodians] to inquire into [the child’s] well-being”), and In re

B.S.O., 234 N.C. App. 706, 711, 760 S.E.2d 59, 64 (2014) (upholding the trial court’s



      9 Admittedly, petitioner-mother testified that, at the time that respondent-father
contacted her, she “hung up” on him and that, subsequently, “the state put a ban and didn’t
let him call me.” As a result, once again, respondent-father was the author of his own
misfortune given that he “demanded” to be allowed to see the children. Moreover, nothing in
the mother’s testimony suggests that respondent-father was in any way prohibited from
communicating with the mother by mail or through intermediaries.


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                                     Opinion of the Court



determination that a parent had abandoned his children on the grounds that the trial

court’s findings showed that, “during the relevant six-month period, respondent-

father ‘made no effort’ to remain in contact with his children or their caretakers and

neither provided nor offered anything toward their support”), and distinguishable

from In re D.E.M., 257 N.C. App. at 621, 810 S.E.2d at 379 (holding that the trial

court had erred by finding that an incarcerated parent’s parental rights in his child

were subject to termination for abandonment based, in part, on the fact that “the trial

court’s findings . . . do not address, in light of his incarceration, what other efforts

[the parent] could have been expected to make to contact [the other parent] and the

juvenile”).

       Although the custody and visitation order that was entered at petitioner-

mother’s request did preclude respondent-father from having direct contact with the

children, it did not place any other limitation upon his ability to interact with or show

love, affection, and parental concern for the children.10 The trial court’s findings of




       10 In spite of the fact that respondent-father has contended in his brief before this
Court that he would have been unable to make a showing of “changed circumstances”
sufficient to support a request for modification of the existing custody and visitation order,
respondent-father points to nothing in the relevant order that prohibited him from
attempting to obtain permission from the mother to have contact with the children or from
requesting the mother or others to relay his best wishes to them. Aside from the fact that
this argument seems inconsistent with our recent decision in In re E.H.P., 372 N.C. at 394,
831 S.E.2d at 53, in which we declined to accept a parent’s contention that he had failed to
seek modification of a temporary custody order because “he ‘wasn’t in a place in [his] life to—
to really be a father or parent,’ ” respondent-father’s exclusive focus upon an attempt to
handicap his own likelihood of successfully obtaining a change in the existing custody and
visitation order is inconsistent with our insistence that incarcerated parents do what they

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                                     Opinion of the Court



fact reflect that respondent-father had the legal right and practical ability to contact

the mother directly or through intermediaries for the purpose of inquiring about the

children’s welfare and asking that she convey his best wishes to them, with nothing

in the custody and visitation order serving to prohibit him from doing so. Similarly,

nothing in the custody and visitation order prohibited respondent-father from using

other persons as a vehicle for the indirect communication of his love, affection, and

parental concern for the children. In spite of the fact that respondent-father had the

ability to make such inquiries or to request others to do so, the trial court’s findings

of fact reflect that respondent-father did not ever make contact with petitioner-

mother to ask permission to have contact with the children or to otherwise express

any love, affection, or parental concern for them during the six-month period

prescribed in N.C.G.S. § 7B-1111(a)(7) and that respondent-father would not even

clearly tell his trial counsel whether he opposed the allowance of the termination

petitions. As a result, we have no difficulty in determining that the trial court’s

findings do, wholly aside from their references to respondent-father’s failure to seek

a modification of the custody and visitation order, support a conclusion that

respondent-father completely withheld his love, affection, and parental concern for

the children, rendering his parental rights in them subject to termination for

abandonment pursuant to N.C.G.S. § 7B-1111(a)(7) and rendering this case easily



can in order to show love and affection for their children and the trial court’s depiction of
defendant’s failure to do anything to this effect at all.


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                                   Opinion of the Court



distinguishable from decisions such as In re K.C., 247 N.C. App. 84, 87–88, 805 S.E.2d

299, 301–02 (2016) (holding that the trial court’s findings of fact failed to support the

termination of the mother’s parental rights on the grounds of neglect by abandonment

despite her failure to visit with the child for the last year prior to the termination

hearing given that the father, based upon the advice of a therapist, refused to grant

the mother’s request for a visit, the fact that the mother had had sporadic visits with

the child prior to being denied access to the child, and the fact that the mother had

paid court-ordered child support), and In re T.C.B., 166 N.C. App. 482, 485–87, 602

S.E.2d 17, 19–20 (2004) (holding that the trial court’s findings of fact failed to support

the termination of the father’s parental rights in his child on the grounds of

abandonment despite the fact that he had not visited with the child for four years

prior to the termination hearing and had not sent the child any letters, cards, or gifts

during that period given the fact that the mother had denied his request to visit the

child during that period, the fact that he had visited with the child on an earlier date,

the fact that the attorney representing the father in connection with charges that he

had sexually abused his child (that were later dismissed) advised him to refrain from

attempting to visit the child during the pendency of the criminal charges, the fact

that the father refused to accept an agreement pursuant to which the pending charges




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                                     Opinion of the Court



would be dismissed in return for his relinquishment of his parental rights, and the

fact that the father regularly paid child support).11

       In seeking to persuade us to reach a different result, respondent-father argues,

in essence, that the order prohibiting him from having contact with the children stood

as an absolute barrier to his ability to show love, affection, and parental concern for

them and that this fact should preclude a finding of abandonment for purposes of

N.C.G.S. § 7B-1111(a)(7). Respondent-father appears to take the position that, in the

absence of a reasonable belief that he had a chance of prevailing in an action seeking

to have the existing custody or visitation arrangements modified, he could not be

found to have willfully abandoned the children despite having done absolutely

nothing to express any interest in their welfare.           However, as we have already

demonstrated, the trial court did not find that respondent-father’s parental rights in

the children were subject to termination for abandonment solely because he failed to

make direct contact with the children at a time when he was incarcerated and

prohibited from doing so by the custody and visitation order. Instead, the trial court’s

findings of fact reflect that respondent-father failed to do anything whatsoever to

express love, affection, and parental concern for the children during the relevant six-

month period, making this case completely different from In re K.N., 373 N.C. at 284,



       11 The conduct of the father in T.C.B. stands in stark contrast to that of respondent-
father, who, as described in the trial court’s findings, would not even take a position
concerning whether he did or did not oppose the termination of his parental rights in the
children.


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                                   Opinion of the Court



837 S.E.2d at 868, in which we held that the trial court’s findings were “insufficient

to support [its] ultimate determination that respondent’s parental rights were subject

to termination on the basis of neglect.” Thus, respondent-father’s argument fails to

take the entirety of the trial court’s findings of fact into consideration or to come to

grips with the ultimate problem created by the fact that the trial court’s findings

reflect a total failure on his part to take any action whatsoever to indicate that he

had any interest in preserving his parental connection with the children.

      A decision to overturn the trial court’s termination orders in this case would

also run afoul of our decisions concerning the manner in which termination of

parental rights cases involving incarcerated individuals should be decided. As we

have already noted, the fact of incarceration is neither a sword nor a shield for

purposes of a termination of parental rights proceeding. Although the fact that he

was incarcerated and subject to an order prohibiting him from directly contacting the

children created obvious obstacles to respondent-father’s ability to show love,

affection, and parental concern for the children, it did not render such a showing

completely impossible.    In spite of the fact that other options for showing love,

affection, and parental concern for the children remained open to him, the trial court’s

findings show that respondent-father remained inactive. For that reason, the effect

of a decision to overturn the trial court’s termination orders would be to allow

respondent-father to use his incarceration and the provisions of the custody and




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                                  Opinion of the Court



visitation order as a shield against a finding of abandonment contrary to the

consistent decisions of this Court and the Court of Appeals.

      A decision to overturn the trial court’s termination orders would also preclude

a trial court from determining that a parent who has been accused of sexually abusing

one of his children and incarcerated for a lengthy period of time prior to trial had

abandoned his children solely because the parent’s spouse and representatives of the

State took action to protect the family from any risk that the incarcerated parent

would inflict further harm upon the members of the family. A decision to reach the

result that respondent-father contends to be appropriate in this case would raise

serious questions about the extent, if any, to which an incarcerated individual subject

to limitations upon his ability to contact a child that he had allegedly abused could

ever be found to have abandoned his or her children for purposes of N.C.G.S. § 7B-

1111(a)(7) regardless of that parent’s failure to do what he or she could have done to

show love, affection, and parental concern for his or her children. Such a result seems

inconsistent with the intent of the General Assembly and the precedents of this Court

or the Court of Appeals. As a result, for all of these reasons, we conclude that the

trial court’s termination orders should be affirmed.

      AFFIRMED.




                                         -17-
      Justice EARLS dissenting.

      This case is yet another example of bad facts making bad law. The majority’s

decision undermines parental rights and expands the definition of abandonment

because to do otherwise, in the majority’s view, would “raise serious questions about

the extent, if any, to which an incarcerated individual subject to limitations upon his

ability to contact a child that he had allegedly abused could ever be found to have

abandoned his or her children for purposes of N.C.G.S. § 7B-1111(a)(7) regardless of

that parent’s failure to do what he or she could have done to show love, affection, and

parental concern for his or her children.” Stated more simply, the majority would like

to make sure that a parent’s rights to a child can be terminated if the parent abuses

the child, even if the parent is incarcerated. While I certainly agree with that

objective, the General Assembly has already addressed it. See N.C.G.S. § 7B-

1111(a)(1) (2019) (allowing for the termination of parental rights if a parent has

abused the child). It is therefore unnecessary, as the majority does today, to expand

the definition of willful abandonment to include a factual situation as limited as the

one before us in this case. I would remand this case to the trial court for additional

findings.

      As the majority acknowledges, the trial court’s order shows that the judgment

terminating respondent’s parental rights was based on findings that respondent did

not have any contact with the children since 2013, that he did not attempt to contact

or see them in the six months preceding the termination petition, and that he did not
                                        IN RE A.G.D.

                                     Earls, J., dissenting



file a motion in the civil custody case to modify the no-contact provisions of the 2014

custody order.1 None of these findings support the conclusion that respondent

willfully abandoned his children.

       First, respondent’s mere lack of contact does not demonstrate that he had a

purposeful, deliberative, and manifest willful determination to forego all parental

duties and relinquish all parental claims to Amy and Andy, because he was prohibited

by court order from contacting the children. Cf. In re T.C.B., 166 N.C. App. 482, 486–

87, 602 S.E.2d 17, 19–20 (2004) (holding that a trial court’s conclusion of willful

abandonment was not supported by its findings regarding lack of visits, because a

protection plan between DSS and the mother prohibited visitation with the

respondent-father, and because the respondent-father’s attorney instructed him not

to have any contact with the child); In re K.C., 247 N.C. App. 84, 88, 805 S.E.2d 299,

301–02 (2016) (holding that a trial court’s conclusion of neglect by abandonment was

not supported by its findings regarding lack of visits, because the petitioner-father

denied the respondent-mother’s request for visitation “on the grounds that the child’s

therapist determined that visits should be suspended indefinitely”). Willful

abandonment under N.C.G.S. § 7B-1111(a)(7) requires willful abdication of parental

responsibility, which simply does not occur if a parent does not contact his children




       1The majority separately claims that the trial court based its conclusions, in part, on
respondent’s failure to maintain contact with the children’s mother. The trial court’s order
contains no statement to that effect.

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                                    Earls, J., dissenting



in compliance with a court order. Cf. Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d

597, 608 (1962) (defining abandonment “as wilful neglect and refusal to perform the

natural and legal obligations of parental care and support”); id. at 502, 126 S.E.2d at

608 (“Abandonment requires a wilful intent to escape parental responsibility and

conduct in effectuation of such intent.”). Respondent’s mere lack of contact thus does

not support the trial court’s conclusion on the ground of willful abandonment.

      Second, the fact that respondent did not file a motion seeking to modify the no-

contact provisions of the civil custody order similarly does not demonstrate that he

willfully abandoned his children. Filing a motion to modify custody or visitation is

evidence that a parent does not have a willful determination to forego all parental

duties and relinquish all parental claims to a child. See, e.g., In re D.T.L., 219 N.C.

App. 219, 222, 722 S.E.2d 516, 518 (2012) (“Having been prohibited by court order

from contacting either petitioner or the juveniles, respondent’s filing of a civil custody

action clearly establishes that he desired to maintain custody of the juveniles and

cannot support a conclusion that he had a willful determination to forego all parental

duties and relinquish all parental claims to the juveniles.”). However, the trial court’s

findings do not indicate that respondent could have successfully modified the civil

custody order with such a motion. Actual modification of custody or visitation

requires a parent to show a substantial change in circumstances affecting the welfare

of the child. Shipman v. Shipman, 357 N.C. 471, 473, 586 S.E.2d 250, 253 (2003) (“It

is well established in this jurisdiction that a trial court may order a modification of


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                                     Earls, J., dissenting



an existing child custody order between two natural parents if the party moving for

modification shows that a ‘substantial change of circumstances affecting the welfare

of the child’ warrants a change in custody.” (quoting Pulliam v. Smith, 348 N.C. 616,

619, 501 S.E.2d 898, 899 (1998))); Charett v. Charett, 42 N.C. App. 189, 193, 256

S.E.2d 238, 241 (1979) (applicable here because “[c]ustody and visitation are two

facets of the same issue.”). Given his continued incarceration on pending charges that

included child pornography and sexual offenses against Amy, respondent could not

show the required substantial change in circumstances necessary to modify the civil

custody order. Respondent’s failure to file a meritless motion in the civil custody case

thus does not support the trial court’s conclusion that he willfully abandoned his

children.

      To be sure, there may be other facts the petitioner could establish and the trial

court could find that would support a conclusion that respondent willfully abandoned

his children or that another ground for termination of his parental rights exists in

this case. But our ruling today should be based solely on the facts that have been

found by the trial court in its order terminating respondent’s parental rights on the

ground of willful abandonment. See In re C.B.C., 373 N.C. 16, 19, 832 S.E.2d 692, 695

(2019) (“We review a trial court’s adjudication under N.C.G.S. § 7B-1109 ‘to determine

whether the findings are supported by clear, cogent and convincing evidence and the

findings support the conclusions of law.’ ” (quoting In re Montgomery, 311 N.C. 101,

111, 316 S.E.2d 246, 253 (1984))).


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                                   Earls, J., dissenting



      The majority makes two additional mistakes on its path to affirming the trial

court. First, the trial court’s findings concerning respondent’s attorneys being “unable

to ascertain” whether respondent wished to contest the termination somehow become

support for the conclusion that respondent manifested a willful determination to

forgo all parental duties and relinquish all parental claims to his children. However

accurate the attorneys’ statements may have been, those statements are not

competent evidence of abandonment. Second, the majority essentially flips the

burden of proof by reasoning that a lack of evidence in the record justifies a finding

of abandonment because the father was “not excused from showing an interest in his

children’s welfare.” This second point must be addressed in detail.

      It remains true that the fact of a parent’s incarceration neither requires a court

to terminate the incarcerated parent’s rights nor prevents a court from doing so. See

In re M.A.W., 370 N.C. 149, 153, 804 S.E.2d 513, 517 (2017) (“Our precedents are

quite clear—and remain in full force—that ‘[i]ncarceration, standing alone, is neither

a sword nor a shield in a termination of parental rights decision.’ ” (alteration in

original) (quoting In re P.L.P., 173 N.C. App. 1, 10, 618 S.E.2d 241, 247 (2005))).

Indeed, this Court recently held that there were sufficient facts to support a finding

of abandonment where the order barring the incarcerated father from having any

contact with the minor child was merely a temporary custody order, and where there

was evidence in the record that the father had the capacity to seek modification of

the custody order and failed to do so because he felt he was not able to be a father to


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                                   Earls, J., dissenting



his child. See In re E.H.P., 372 N.C. 388, 394, 831 S.E.2d 49, 53 (2019) (“A temporary

custody order is by definition provisional, and the order at issue here expressly

contemplated the possibility that the no-contact provision would be modified in a

future order.”); see also In re C.B.C., 373 N.C. at 19–23, 832 S.E.2d at 695–97 (holding

that abandonment was established despite the fact that respondent had been

incarcerated for approximately three of the relevant six months before the filing of

the petition because respondent made no attempt to contact the child while not

incarcerated and there was no court order barring him from doing so).

      In this case, however, the record is silent as to whether the respondent could

successfully modify the court orders that prevented him from having any contact

whatsoever with his children. Thus, we are confronted with a situation similar to the

situation in In re K.N., 373 N.C. 274, 837 S.E.2d 861 (2020). In that case, we held that

             respondent’s incarceration, by itself, cannot serve as clear,
             cogent, and convincing evidence of neglect. Instead, the
             extent to which a parent’s incarceration or violation of the
             terms and conditions of probation support a finding of
             neglect depends upon an analysis of the relevant facts and
             circumstances, including the length of the parent’s
             incarceration. The trial court’s findings do not contain any
             such analysis.

Id. at 283, 837 S.E.2d at 867–68. Likewise, the bare bones order in this case does not

provide sufficient facts to support the conclusion that respondent willfully abandoned

his children. The trial court’s findings do little more than establish that at the time

of the hearing respondent was in jail awaiting trial, under a court order not to contact



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                                  Earls, J., dissenting



his children. There are therefore few facts upon which to distinguish this case from

In re K.N.

      Accordingly, the trial court’s findings do not support its conclusion that the

ground of willful abandonment exists to terminate respondent’s parental rights.

Willful abandonment was the only basis upon which the trial court terminated

respondent’s parental rights to the minor children, and I would therefore vacate the

trial court’s order and remand for further proceedings.




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