IN THE SUPREME COURT OF NORTH CAROLINA

No. 21A20

Filed 25 September 2020

IN THE MATTER OF: L.M.M.

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

27 September 2019 by Judge David V. Byrd in District Court, Wilkes County. This 

matter was calendared in the Supreme Court on 27 August 2020 but was determined 

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

Carolina Rules of Appellate Procedure.

Vannoy, Colvard, Triplett & Vannoy, P.L.L.C., by Daniel S. Johnson, for 

petitioner-appellee.

Robert W. Ewing for respondent-appellant.

DAVIS, Justice.

In this case, we consider whether the trial court erred by terminating the 

parental rights of respondent-mother to her son “Larry.”1 Because we conclude that 

the evidence and the trial court’s findings of fact support the conclusion that 

respondent willfully abandoned Larry within the meaning of N.C.G.S. § 7B1111(a)(7), we affirm.

Factual and Procedural Background

 

1 A pseudonym is used throughout this opinion to protect the identity of the juvenile.
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Opinion of the Court

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Larry was born in November 2016 and spent the first year of his life in 

respondent’s care and custody. Petitioner is respondent’s second cousin and a lifelong 

resident of Wilkes County, North Carolina. Petitioner attended the same church as 

respondent and saw respondent with Larry each week during services. Petitioner also 

spent time with Larry at her grandmother’s house in Hays, North Carolina, when

respondent was living nearby.

Petitioner lost touch with respondent at some point in 2017. In November 2017, 

petitioner contacted respondent on Facebook and learned that she had moved to 

Asheville with Larry. Respondent told petitioner that she was unemployed, out of 

money, and alternating between staying at a friend’s house and sleeping in her car. 

Respondent confessed that she was unable to take care of Larry and asked petitioner 

to keep him for “a few months” until respondent “got back on her feet.”

After conferring with her then-husband,2 petitioner agreed to take Larry on 

the condition that respondent permanently sign over her parental rights regarding 

him to petitioner. Respondent initially reiterated her desire for a temporary 

arrangement but ultimately agreed to surrender Larry to petitioner on a permanent

basis.

 

2 Petitioner testified that she and her husband separated on 24 November 2017 and 

later divorced on 13 August 2019.
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Opinion of the Court

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On 8 November 2017,3 petitioner drove to the Greyhound bus station in 

Asheville to take Larry from respondent. At petitioner’s request, respondent signed 

a document that purported to give petitioner permanent parental rights to Larry. A 

family friend notarized the document in the parties’ presence. Petitioner then brought 

Larry back to live with her. A few weeks later, respondent contacted petitioner on

Facebook to check on Larry and asked for a picture of him. Respondent also asked for 

money. Petitioner sent respondent a photograph of Larry but refused to wire her any 

money.

Respondent also phoned petitioner to ask if she would pay respondent’s cell 

phone bill. Petitioner’s mother paid respondent’s phone bill for a brief period of time 

so that petitioner and respondent would be able to contact each other.

After respondent sent her a second request for money on 21 November 2017, 

petitioner blocked respondent on Facebook. Petitioner maintained the same phone 

number thereafter but did not hear from respondent or make any attempt to contact 

her after 21 November 2017. Respondent was incarcerated during 2018 and remained 

in custody at the time of the termination hearing.

On 18 January 2019, after initiating adoption proceedings, petitioner filed a 

petition to terminate respondent’s parental rights to Larry. Respondent filed a 

response in opposition to the petition. The trial court held a hearing on 14 August 

 

3 Although the trial court’s order lists the date as 17 November 2017, the hearing 

testimony reflects a date of 8 November 2017.
IN RE: L.M.M.

Opinion of the Court

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2019 and entered an order terminating respondent’s parental rights to Larry on 27 

September 2019. Respondent gave timely notice of appeal from the order.

4

Analysis

Our Juvenile Code provides for a two-step process for the termination of 

parental rights—an adjudicatory stage and a dispositional stage. N.C.G.S. §§ 7B1109, -1110 (2019). At the adjudicatory stage, the petitioner bears the burden of 

proving by clear, cogent, and convincing evidence the existence of one or more grounds 

for termination under subsection 7B-1111(a). N.C.G.S. § 7B-1109(e), (f). If the trial 

court finds the existence of one or more grounds to terminate the respondent’s 

parental rights, the matter proceeds to the dispositional stage where the court must 

determine whether terminating the parent’s rights is in the juvenile’s best interests. 

N.C.G.S. § 7B-1110(a).

Respondent does not contest the trial court’s dispositional determination that 

it was in Larry’s best interests to terminate her parental rights. Accordingly, the sole 

issue before us is whether the trial court correctly determined that one or more 

grounds existed to terminate her parental rights under N.C.G.S. § 7B-1111.

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 Montgomery, 311 N.C. 101, 111, 316 

 

4 Although the trial court’s order also terminated the parental rights of Larry’s father, 

he is not a party to this appeal.
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S.E.2d 246, 253 (1984). “Where no exception is taken to a finding of fact by the trial 

court, the finding is presumed to be supported by competent evidence and is binding 

on appeal.” Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). We 

review the trial court’s conclusions of law de novo. In re C.B.C., 373 N.C. 16, 19, 832 

S.E.2d 692, 695 (2019).

The trial court concluded that petitioner had established three statutory 

grounds for terminating respondent’s parental rights, including that respondent had 

“willfully abandoned” Larry pursuant to N.C.G.S. § 7B-1111(a)(7). It is well

established that an adjudication of any single ground for termination under N.C.G.S. 

§ 7B-1111(a) will suffice to support a trial court’s order terminating parental rights. 

See, e.g., In re C.B.C., 373 N.C. at 23, 832 S.E.2d at 697. Therefore, if we uphold any 

one of the three statutory grounds adjudicated by the trial court, we need not review 

the remaining grounds. Id.; In re E.H.P., 372 N.C. 388, 395, 831 S.E.2d 49, 53 (2019).

Subsection 7B-1111(a)(7) allows for the termination of parental rights where 

the parent has “willfully abandoned the juvenile for at least six consecutive months 

immediately preceding the filing of the petition.” N.C.G.S. § 7B-1111(a)(7). The 

determinative time period in this case is the six-month period between 18 July 2018 

and 18 January 2019, the date petitioner filed her petition. We have held that “the 

trial court may consider a parent’s conduct outside the six-month window in 

evaluating a parent’s credibility and intentions” during the six months at issue. In re 

C.B.C., 373 N.C. at 22, 832 S.E.2d at 697 (emphasis removed) (citation omitted).
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As used in N.C.G.S. § 7B-1111(a)(7), abandonment requires a “purposeful, 

deliberative and manifest willful determination to forego all parental duties and 

relinquish all parental claims to the child.” In re A.G.D., 374 N.C. 317, 319, 841 S.E.2d 

238, 240 (2020) (cleaned up). The willful intent element “is an integral part of 

abandonment” and is determined according to the evidence before the trial court.

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

repeatedly held that “if a parent withholds that parent’s presence, love, care, the 

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

maintenance, such parent relinquishes all parental claims and abandons the child.” 

In re A.L.S., 374 N.C. 515, 519, 843 S.E.2d 89, 92 (2020) (cleaned up).

In her brief, respondent challenges several of the trial court’s findings of fact 

as unsupported by clear, cogent, and convincing evidence and disputes the trial 

court’s conclusion of law that respondent willfully abandoned Larry. We address her 

contentions in turn.

I. Findings of Fact

In addition to recounting the circumstances of how Larry came into petitioner’s 

care in November 2017, the trial court made the following pertinent findings of fact 

regarding its adjudication of willful abandonment under N.C.G.S. § 7B-1111(a)(7):

13. Apart from the Facebook messenger text [in 

November 2017], the Respondent-Mother has had no other 

contact with the Petitioner regarding the minor child. She 

has sent some requests for money to the Petitioner. The 

Petitioner’s mother paid a cell phone bill for the 
IN RE: L.M.M.

Opinion of the Court

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Respondent-Mother so the Respondent-Mother could be 

contacted if needed.

. . . .

15. Neither parent has provided any financial support 

for the minor child.

. . . .

17. Each of the Respondents are currently incarcerated 

. . . . The Respondent-Mother has a projected release date 

in December 2019.

18. Neither parent has provided any type of gifts, cards, 

or other customary tokens of affection for the minor child 

since he has been in the custody of the Petitioner. Neither 

parent has ever taken any action as would have been 

available to them while in custody.

19. During the six months immediately preceding the 

filing of the petition to terminate their parental rights, 

neither Respondent had any contact with the minor child. 

During the six months immediately preceding the filing of 

the petition, neither respondent provided any financial 

support for the minor child.

20. Neither Respondent has performed any of the 

natural and legal obligations of support and maintenance 

for the minor child since he has been in the custody of the 

Petitioner. . . .

. . . .

22. Although the Petitioner blocked the RespondentMother on Facebook, she did not block her access by phone 

and Respondent-Mother also could communicate with her 

family members.

Respondent initially contests the portion of Finding of Fact 13 providing that 
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she contacted petitioner about Larry on Facebook on just one occasion in November 

2017, contending that she in fact contacted petitioner several times that month. In 

her testimony, petitioner described two instances in November 2017 when respondent 

sent her Facebook messages about Larry. In the first message, respondent asked how 

Larry was doing and—after petitioner declined her request for money—requested a 

picture of him. Upon receiving the picture, respondent sent petitioner a message 

saying, “Sweet, little baby,” and “Love y’all.” On 21 November 2017, the day after her 

second request for money, respondent sent petitioner a message asking whether 

Larry “had a good birthday[.]” When petitioner replied in the affirmative, respondent 

sent a message saying “good.” Although petitioner also received “a couple [of phone] 

calls” from respondent during this period, she testified that one of the calls concerned 

“a cell phone bill [respondent] wanted paid,” and that she could not recall the subject 

of the second call. To the extent that Finding of Fact 13 undercounts the number of 

messages respondent sent to petitioner about Larry in November 2017, we conclude

the discrepancy is harmless because the messages were exchanged “well outside the 

determinative [six-month] time period.” In re K.N.K., 374 N.C. 50, 56, 839 S.E.2d 735, 

740 (2020).

Respondent next challenges the portions of Finding of Fact 18 stating that she 

failed to provide “tokens of affection” or take other “available” actions to show Larry 

affection while she was incarcerated. She contends that petitioner offered no evidence 

“on the issue of whether [respondent] could obtain gifts or other customary tokens of 
IN RE: L.M.M.

Opinion of the Court

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affection [for Larry] while she was in prison.”

The trial court’s finding is supported by testimony detailing the 

communications between respondent and petitioner. Petitioner’s testimony supports 

the finding that respondent did not contact petitioner about Larry after 21 November 

2017 and never provided Larry with any sign of her affection after placing him in

petitioner’s care. The evidence presented at the adjudicatory stage of the hearing does

not reveal precisely when in 2018 respondent became incarcerated. However, the fact 

that respondent never exhibited affection to Larry after November 2017 necessarily 

supports a finding that she did not do so during her incarceration.

We have made clear that “[a]lthough 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. 

at 19–20, 832 S.E.2d at 695; see also In re E.H.P., 372 N.C. at 394, 831 S.E.2d at 53 

(“[T]he fact that respondent was incarcerated for almost the entirety of the six-month 

period preceding the filing of the termination petition does not preclude a finding of 

willful abandonment under N.C.G.S. § 7B-1111(a)(7).”). Contrary to respondent’s 

characterization of Finding of Fact 18, the trial court did not find that she had the 

ability to send Larry “gifts, cards, or other customary tokens of affection” while 

incarcerated. Rather, the court found that respondent had not taken “any action

[emphasis added] as would have been available to [her]” while incarcerated so as to 

demonstrate interest in or affection toward Larry.
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The evidence before the trial court showed that respondent was in possession 

of petitioner’s phone number and had other shared relatives in Wilkes County

through whom respondent could have attempted to communicate with Larry, 

including respondent’s own mother as well as petitioner’s mother and grandmother. 

Petitioner testified that she spoke to respondent’s mother “regularly” and had “never 

been advised” of any attempt by respondent to contact her about Larry. Based on this 

evidence, the trial court reasonably inferred that respondent had some means 

available to display familial affection for Larry despite the circumstance of her 

incarceration. See In re A.G.D., 374 N.C. 317, 327, 841 S.E.2d 238, 244 (2020) 

(“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.”).

II. Conclusions of Law

Respondent also argues that the trial court’s findings that she did not contact 

Larry or provide financial support for the child during the determinative six-month 

period—even if accurate—do not support the court’s conclusion that she willfully

abandoned the child. Respondent contends that the trial court’s findings fail to 

account for petitioner’s unwillingness to allow her to have contact with Larry after 

November 2017. She further asserts that the court heard no evidence that she had 

the ability to provide financial support for Larry while she was incarcerated.
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Opinion of the Court

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Respondent argues that the evidence showed “[her] lack of contact and financial 

support was not a willful act on her part.”

This Court previously addressed a similar willful abandonment issue involving 

an incarcerated parent in In re A.G.D. In that case, we reviewed an adjudication of 

willful abandonment that was made where the evidence showed that the respondentfather was incarcerated, divorced from the children’s mother, and subject to a court 

order “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.” 374 N.C. at 318, 841 S.E.2d at 239. Despite the obvious 

impediments faced by the respondent-father, we held that the trial court’s findings 

nevertheless demonstrated his willful abandonment of the children:

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 respondentfather 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[.]
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Opinion of the Court

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Id. at 324, 841 S.E.2d at 242–43. Based on our determination that “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 sixmonth period,” we affirmed the order terminating his parental rights pursuant to 

N.C.G.S. § 7B-1111(a)(7). Id. at 327, 841 S.E.2d at 244.

Here, as in In re A.G.D., respondent’s complete failure to show any interest in 

Larry after November 2017—particularly during the six months between 18 July 

2018 and 18 January 2019—supports the trial court’s conclusion that she acted 

willfully in abandoning the child. Unlike the respondent-father in In re A.G.D., 

respondent was not subject to a court order that overrode her custodial rights as 

Larry’s mother or otherwise barred her from contacting her child. Although petitioner 

blocked respondent on Facebook, respondent was not precluded from contacting 

petitioner by phone or contacting other relatives, including her own mother, in order 

to convey her concern and affection for Larry. See In re A.L.S., 374 N.C. at 522, 843 

S.E.2d at 94 (holding that the “[r]espondent-mother’s failure to even attempt any 

form of contact or communication with [the child] gives rise to an inference that she 

acted willfully in abdicating her parental role, notwithstanding any personal animus 

between her and [the child’s custodians]”); In re A.G.D., 374 N.C. at 325, 841 S.E.2d 

at 243 (noting that the “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.”).
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Opinion of the Court

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Respondent also cites the evidence that she initially asked petitioner to accept 

a temporary caretaking role for Larry in November 2017—thereby resisting 

petitioner’s demand that she “[s]ign him over to [petitioner] permanently”—as proof 

that she did not willfully abandon the child. The trial court’s findings account for the 

fact that respondent “initially wanted a temporary” arrangement for Larry “but later 

agreed for the Petitioner to have the child permanently.” Although the court was free 

to consider the circumstances under which respondent placed Larry in petitioner’s 

care, those circumstances represented respondent’s intentions in November 2017

rather than during the six-month period relevant to an adjudication under N.C.G.S. 

§ 7B-1111(a)(7). See In re K.N.K., 374 N.C. at 56, 839 S.E.2d at 740. The weight to 

be assigned to respondent’s conduct during this earlier period was a matter left to 

the trial court’s discretion as fact-finder. See In re C.B.C., 373 N.C. at 23, 832 S.E.2d 

at 697 (“[W]hile the court may consider respondent’s prior efforts in seeking a 

relationship with [the child] . . . , respondent’s prior actions will not preclude a 

finding that he willfully abandoned [the child] pursuant to N.C.G.S. § 7B-1111(a)(7) 

if he did nothing to maintain or establish a relationship with [her] during the 

determinative six-month period.”).

Finally, while we agree with respondent that the trial court received no 

evidence of her ability to support Larry financially, there is no indication that the 

court based its adjudication on this lack of financial support. See generally Pratt, 257 

N.C. at 501–02, 126 S.E.2d at 608 (“[A] mere failure of the parent of a minor child in 
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Opinion of the Court

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the custody of a third person to contribute to its support does not in and of itself 

constitute abandonment. Explanations could be made which would be inconsistent 

with a wil[l]ful intent to abandon.”); see also In re K.N.K., 374 N.C. at 54 n.3, 839 

S.E.2d at 738 n.3 (concluding the trial court “would have reached the same 

conclusion about respondent’s willful abandonment of” the child even without the 

finding that he contributed nothing toward her support and maintenance). Although 

the court found that “[n]either parent has provided any financial support for the 

minor child[,]” the significance of this finding is to exclude the possibility that 

respondent demonstrated her concern for Larry financially—rather than through 

the personal contact and displays of affection contemplated in cases such as In re 

A.D.G.

Because the evidence and the trial court’s findings show respondent undertook 

no action “whatsoever to express love, affection, and parental concern for the child[ ]

during the relevant six-month period,” we hold that the trial court did not err by 

determining that grounds existed under N.C.G.S. § 7B-1111(a)(7) to terminate

respondent’s parental rights. In light of our holding, we need not review the trial 

court’s two additional grounds for termination. In re C.B.C., 373 N.C. at 23, 832 

S.E.2d at 697.

Conclusion

For the reasons stated above, we affirm the trial court’s 27 September 2019 

order terminating respondent’s parental rights.
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Opinion of the Court

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AFFIRMED.
Justice EARLS, dissenting.

In order to terminate respondent-mother Cathy’s parental rights to her son 

Larry under N.C.G.S. § 7B-1111(a)(7), the trial court needed to find by clear, cogent, 

and convincing evidence that the parent “willfully abandoned the juvenile for at least 

six consecutive months immediately preceding the filing of the petition or motion.” 

At trial, the burden was not on Cathy to prove that she did not willfully abandon 

Larry; the burden was on the petitioner, Karen, to prove that Cathy did. See In re 

Ballard, 311 N.C. 708, 716, 319 S.E.2d 227, 232 (1984). The trial court’s findings 

make clear that Karen has failed to meet this burden. The trial court also concluded 

that Karen proved two other grounds to terminate Cathy’s parental rights, neglect 

and prior termination of the parent’s rights as to other children, while rejecting a 

fourth alleged ground of incapability that will continue for the foreseeable future. 

Because the evidence was not sufficient to show neglect, and no factual findings were 

made concerning Cathy’s ability or willingness to establish a safe home, I would 

reverse the trial court’s order and remand for further factual findings on the question 

of whether the evidence in this case was sufficient to conclude that Cathy was unable 

or unwilling to establish a safe home.

Larry was born on 18 November 2016 and lived with Cathy for almost a year. 

On 8 November 2017, Cathy asked Karen to temporarily care for Larry. In addition 

to the pleadings, the only other evidence before the trial court at the adjudicatory 

stage of the hearing in this private termination proceeding was Karen’s testimony. 
IN RE L.M.M.

Earls, J., dissenting.

-2-

Karen’s testimony regarding Cathy’s request highlights that, faced with 

homelessness and no income, Cathy concluded that Larry needed better care than 

she was able to provide to her child at that moment in her life. Karen testified to the 

discussion she had with Cathy, explaining:

When she asked me if I wanted to do it just until she got 

back on her feet, I sent back that I could not do that, it 

would not be fair. She then said, “Well, how about I do this 

temporarily, and then if I’m not back on my feet in this 

amount of time, you’ll then have full rights.” And I then 

again declined that.

Karen then testified that:

I printed some online [sic] because I needed to know—I did 

not want anything to be said that I may have took him 

while she might have been under the influence or that I 

may have paid for him or just stole him or anything like 

that. So yes, I did find some things online. A notary went 

with me. My mom’s friend went with us and notarized 

everything that was signed. And she was also read— it was 

dark, so my mom read it out to her, and she signed it.

The paper signed by Cathy that evening was not made a part of the record. The 

trial court’s finding states only that Cathy “later agreed for the Petitioner to have the 

child permanently.” However, Karen’s testimony on that point is not at all clear. In 

addition to the statement above, Karen’s only other testimony is that:

Q. You asked [Cathy] if she would be willing to 

relinquish her parental rights?

A. Sign him over to me permanently is exactly what I 

said.

Q. What did [Cathy] tell you?
IN RE L.M.M.

Earls, J., dissenting.

-3-

A. When I sent that, she was actually away from the 

phone. One of her friends responded and said that 

she was not there, but they would let her know. So 

then about an hour after, she responded and said, 

“Could I give a temporary order, and then if I don’t 

have everything finished or if I don’t have 

everything back in line within a certain amount of 

time, you would then take rights to him?” And I said, 

“I’m sorry, you know, I would need full rights when 

I picked him up.”

Q. What did [Cathy] tell you?

A. She then agreed. She said that was what was best 

for him and that she could not provide for him and 

that— I’m trying to think back. I’m so sorry. I’m 

nervous. She then said that the only thing she 

wanted is she wanted him to know about her.

Whatever Cathy might have understood from a text message about what “sign him 

over to me permanently” meant, and whatever the piece of paper she signed actually 

stated, the trial court’s ultimate conclusion concerning the events of 17 November 

20171 was not that they evidenced willful abandonment or neglect on Cathy’s part. 

Instead, the trial court found that Cathy’s decision was a reasonable childcare 

arrangement sought out under difficult circumstances. The trial court explained:

I agree with the argument that the mother placing the 

child with the Petitioner, that was, in my view, an 

appropriate childcare arrangement that she reached out 

and made. I know [respondent-father “Greg”]—there’s no 

evidence that he directly entered into that. However, the 

 

1 There is a discrepancy between the trial testimony about when this occurred and 

the trial court’s finding of fact. The finding of fact states this occurred on November 17, 

2017.
IN RE L.M.M.

Earls, J., dissenting.

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Court will rule that that ground has not been met for either. 

[emphasis added].

Karen testified that she and Cathy had telephone conversations and 

exchanged further Facebook messages over the next few weeks. Karen stated that at 

some time in “the latter part of 2018” she became aware that Cathy was incarcerated, 

and that Cathy would be incarcerated for all of 2019 up to the date of the hearing on 

14 August 2019. Karen also admitted that she blocked Cathy from being able to 

message her on Facebook:

Q. Do you try to— is [Cathy] blocked from you?

A. I can still see her things. I actually have every one 

that we every (sic) sent on my phone.

Q. But you haven’t blocked her from sending you 

messages on Facebook?

A. Yeah, I blocked her. I did. That was after I got the 

request for Moneygram and when I had— there was 

no other— but my number, she’s not blocked from 

that. She can always reach out to me by phone.

Q. Cell phone?

A. Yes. She’s not blocked from anything except for 

Facebook. And that was only because, when I make 

posts about him, I didn’t want her to be able to see 

pictures of him or things that we do in our lives. But 

my phone is still available.

The termination petition was filed on 18 January 2019 and the summons was 

addressed to Cathy at the N.C. Correctional Institute for Women in Raleigh. Thus, 
IN RE L.M.M.

Earls, J., dissenting.

-5-

Karen needed to present clear and cogent evidence that Cathy “willfully abandoned 

the juvenile for at least six consecutive months immediately preceding the filing of 

the petition” during the six-month period between 18 July 2018 and 18 January 2019. 

Cathy was incarcerated during the “determinative period” preceding the termination 

proceeding. “A parent's incarceration may be relevant to the determination of 

whether parental rights should be terminated, but our precedents are quite clear—

and remain in full force—that incarceration, standing alone, is neither a sword nor a 

shield in a termination of parental rights decision.” In re K.N., 373 N.C. 274, 282, 837 

S.E.2d 861, 867 (2020) (cleaned up). Accordingly, the burden was on Karen to prove 

that, “upon an analysis of the relevant facts and circumstances,” Cathy willfully 

abandoned Larry. Id. at 283, 837 S.E.2d at 867–68. 

The evidence the trial court relies upon does not support such a finding. 

Karen’s testimony, supplemented by no other evidence besides the pleadings, simply 

does not prove that Cathy willfully abandoned Larry. All the Court could know based 

on Karen’s testimony is that Karen did not hear from Cathy during the determinative 

period and that, for some unspecified part of that time, Cathy was incarcerated. 

Karen’s testimony does not prove whether or not Cathy took steps to maintain a 

connection with her child given the opportunities available to her during her 

incarceration. 

In the circumstances of this case, absent any other indications of Cathy’s intent 

to abandon her son, the mere lack of actual contact by an incarcerated parent whose 
IN RE L.M.M.

Earls, J., dissenting.

-6-

location was known to the petitioner is not the same thing as evidence that the parent 

did not attempt to make contact, as this exchange illustrates:

Q. Have you yourself had tried to contact her at all?

A. No, sir.

Q. And are you aware that she’s tried to contact, if not 

you, other people in your family to get a hold of you?

A. No, sir.

Q. Okay.

A. And I did speak to her mom regularly, and I’ve never 

been advised of that at all.

This testimony proves either that Cathy did not make any attempt to contact Karen 

in order to maintain a connection with Larry, or that she attempted to contact Karen 

but was unsuccessful in her efforts. The former would be evidence that could prove 

willful abandonment but the latter, standing alone as it was in this case, could not. 

The absence of evidence is not the same thing as clear, cogent, and convincing 

evidence to prove a fact. See In re Moore, 306 N.C. 394, 403–04, 293 S.E.2d 127, 132 

(1982) (“G.S. 7A-289.30(e) provides, inter alia, that in an adjudicatory hearing on a 

petition to terminate parental rights the court shall find the facts and ‘all findings of 

fact shall be based on clear, cogent, and convincing evidence.’ ”) Here, based on 

Karen’s evidence, the trial court could not know what Cathy did or did not do while 

in custody during the determinative six-month period. The testimony only established 

that if Cathy did make the efforts the majority identifies as necessary for an 
IN RE L.M.M.

Earls, J., dissenting.

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incarcerated parent to make to demonstrate a lack of willful abandonment, namely 

“showing interest in [the] child’s welfare by whatever means available,” those efforts 

were unsuccessful.

At the dispositional stage of the hearing, after the trial court had found 

grounds to terminate Cathy’s parental rights, Cathy testified that she attempted to 

contact Karen whenever she had access to Wi-Fi. Cathy attempted to contact Karen 

by Facebook Messenger, but Karen informed Cathy that she was blocking Cathy on 

Facebook because she had obtained custody of Larry and, as Karen testified, she 

“didn’t want her to be able to see pictures of him or things that we do in our lives,” or 

as Cathy testified, “[Karen] didn’t want no drama or nothing to be said.” Cathy also 

testified that she attempted to contact Karen and Larry by text messaging. Cathy 

testified that she wrote her mother, aunt, and grandmother in an attempt to contact 

Larry, to find out how he was doing, and to obtain pictures of him. Cathy testified 

that she also sent birthday, Christmas, and Easter cards to Larry through her 

mother, cards that she believed had been given to Karen.

This evidence was not presented at the adjudication stage. It is true that even 

it if had been presented, the trial court was free to make its own determination that 

Cathy’s testimony was not credible. The fundamental point is that without evidence 

of what Cathy did or did not do, especially while she was in custody, the trial court 

could not merely assume that Cathy willfully abandoned her son. 

Karen’s testimony did not “prove” what Cathy did or did not do. The burden to 
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Earls, J., dissenting.

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prove willful abandonment requires evidence of the parent’s intent. In this context, 

“abandonment imports any wil[l]ful 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.” In re K.R.C., 374 N.C. 849, 860, 845 S.E.2d 56, 63 (N.C. 

2020) (quoting Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962)). The 

trial court’s factual findings do not support the legal conclusion that Cathy willfully 

abandoned her son, only that she was unable to get in touch with her son’s caregiver 

while she was incarcerated. Under N.C.G.S. § 7B-1111(a)(7), that is a crucial 

distinction. 

The allocation of the burden to petitioners to affirmatively prove by clear, 

cogent, and convincing evidence that termination is warranted is no mere 

technicality. Until termination was ordered, respondent enjoyed a “constitutionally 

protected paramount right” to the “custody, care, and control” of her child. Owenby v. 

Young, 357 N.C. 142, 148, 579 S.E.2d 264, 268 (2003). Because there are “few forms 

of state action [that] are both so severe and so irreversible” as terminating parental 

rights, the United States Supreme Court has long held that petitioners must carry 

the “elevated burden of proof” that termination is warranted by clear and convincing 

evidence. Santosky v. Kramer, 455 U.S. 745, 759 (1982). Cases like this one 

“involving the State’s authority to sever permanently a parent-child bond demands 

the close consideration the Court has long required when a family association so 

undeniably important is at stake.” M.L.B. v. S.L.J., 519 U.S. 102, 116–17 (1996). The 
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Earls, J., dissenting.

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judiciary must be “mindful of the gravity of the sanction imposed on” a mother when 

her parental rights are terminated and accord all due respect to the substantive and 

procedural protections the law affords to even imperfect parents. Id. Before 

undertaking action that is “irretrievably destructive of the most fundamental family 

relationship,” id. at 121, the trial court must find facts proving respondent’s alleged

lack of efforts to maintain a connection with her child, not simply facts attesting to 

the petitioner’s experience and perception of her interactions with respondent.

Likewise, the factual findings in this case are insufficient to support the 

conclusion that Larry was a neglected child. It is well established that “[a] finding of 

neglect sufficient to terminate parental rights must be based on evidence showing 

neglect at the time of the termination proceeding.” In re Young, 346 N.C. 244, 248, 

485 S.E.2d 612, 615 (1997) (citing In re Ballard, 311 N.C. 708, 716, 319 S.E.2d 227, 

232 (1984)). Moreover, a juvenile cannot be adjudicated as neglected solely based 

upon previous Department of Social Services involvement relating to other children. 

See In re J.A.M., 372 N.C. 1, 9, 822 S.E.2d 693, 698. (2019). To support a conclusion 

that a juvenile does not receive proper care, the findings of fact must show current 

circumstances that present a risk to the juvenile. Where the child is not presently in 

the parent’s custody, the trial court must make findings of fact that the parent 

previously neglected the child in order to reach the conclusion that the child is a 

neglected juvenile under N.C.G.S. § 7B-1111(a)(1). See In re D.L.W., 368 N.C. 835, 

843, 788 S.E.2d 162, 167 (2016) (citing In re Ballard, 311 N.C. 708, 713–15, 319 
IN RE L.M.M.

Earls, J., dissenting.

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S.E.2d 227, 231–32 (1984)). 

In this case, as the trial court observed, Cathy recognized when she was unable 

to provide for Larry and sought an appropriate alternative childcare arrangement, 

placing Larry with Karen. Karen’s testimony was that Larry was healthy; there was 

no evidence that he suffered malnutrition, adverse health conditions or other issues 

while he was in Cathy’s care. The evidence in this case does not establish past 

neglect. A trial court should not imply that a parent has neglected her child simply 

because she recognizes the difficulties attendant in her own circumstances and seeks 

to ameliorate their harmful consequences. To find neglect in this case treats the 

mother who takes definitive action to further her child’s interests in desperate 

circumstances no differently from the mother who does not or cannot. The 

respondent’s protective actions do not support the inference that she neglected her 

child under N.C.G.S. § 7B-1111(a)(1).

The trial court’s error with regard to the third ground, prior termination of the 

parent’s rights as to other children under N.C.G.S. § 7B-1111(a)(9), is readily 

apparent from the trial transcript and the trial court’s order. The statute provides 

that the court may terminate the parental rights upon a finding that “[t]he parental 

rights of the parent with respect to another child of the parent have been terminated 

involuntarily by a court of competent jurisdiction and the parent lacks the ability or 

willingness to establish a safe home.” N.C.G.S. § 7B-1111(a)(9). Here, the court made 

the first requisite finding for this ground—that respondent’s parental rights had been 
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Earls, J., dissenting.

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terminated “with respect to another child”—but completely omitted any consideration 

of the second requisite finding that respondent lacked the ability or willingness to 

establish a safe home. It seems possible that counsel inadvertently misled the trial 

court on this point when stating at trial, “Well, I’ll be brief. You know, it’s kind of 

cliche. It is what it is as far as the respondents being involuntarily terminated before. 

It just is a fact, so that technically is a ground good enough to get us past 

adjudication.” Further, the trial court’s conclusion of law in its order terminating 

parental rights on this ground states only that “[t]he parental rights of both 

Respondents have been terminated involuntarily by a Court of competent jurisdiction 

[N.C.G.S. § 7B-1111(a)(9)].” Therefore, where the trial court was operating under a 

clear misunderstanding of the applicable law on this question and the evidence was 

insufficient to support other grounds for termination, the case should be remanded 

for further findings on the question of whether the evidence was sufficient to show 

that Cathy lacked the present ability or willingness to establish a safe home. It may 

be that the evidence produced at trial was clear, cogent, and convincing that Cathy

does not have the will or the ability to provide a safe home for Larry. However, those 

are findings that, in these circumstances, should be made in the first instance by the 

trial court. 

For the above stated reasons, I respectfully dissent.