Parental rights, COA18-427, Jan. 15, 2019, In the Matter of I.R.L, Robeson County
After a termination of parental rights hearing, Respondent-Father (“Father”) appealed the termination of his parental rights. The COA reversed and remanded the issue to the trial court.
The minor (“child”) was born in February 2014, and Father and Petitioner-Mother (“Mother”) lived together until March 2015. In April 2016, Mother obtained a DVPO against Father. In March 2017 (one month before the expiration of the DVPO) Father filed a Chapter 50 action for visitation with the child. The same day Mother filed to terminate Father’s parent rights.
Mother specifically filed for termination of parental rights pursuant to N.C. Gen Stat. 7B-1111(a)(7) (Abandonment). Predictably, it was difficult for Mother to make a showing that Father’s absence was due to willful intent. The Court’s order did not include any finding regarding willfulness, as the child was three years old at the time of the DVPO entry and likely was not far from Mother. The DVPO prevented any communication and required him to stay away from her home and workplace. The court also viewed favorably Father’s act of filing an action for visitation contemporaneously with the expiration of the DVPO.
The COA also declined to terminate Father’s parental rights under N.C. Gen Stat 7B-1111(a)(4) as well.
The COA discussed the fact that the trial court order was devoid of findings that Father failed to pay support “as required” by a court order. This leads to the conclusion that simply alleging (and presenting evidence) that a parent is under a court order to pay support and has not do – is insufficient.
The COA ultimately reasoned that they could not terminate Father’s parental rights based on the above ground because the petition was insufficient to put Father on notice that is parental rights were subject to termination, as Mother did not allege a “willful” failure to pay support as required by an order or agreement – just that he failed to do so.
Practice Tip: Make sure your pleading sufficiently states that the failure to provide financial support is willful, as the existence of an agreement/order and non-payment will not be sufficient.
https://ncbarblog.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00FamilyLawhttps://ncbarblog.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngFamilyLaw2019-03-13 16:34:052019-03-13 16:37:09NC COA: TPR Sufficiency Of Pleadings, In the Matter Of I.R.L.