IN THE SUPREME COURT OF NORTH CAROLINA

2021-NCSC-52

No. 332A20

Filed 23 April 2021

IN THE MATTER OF: M.S.A.

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

February 2020 by Judge Jimmy L. Myers in District Court, Davidson County. This 

matter was calendared in the Supreme Court on 19 March 2021, 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.

Edward Eldred for respondent-appellant father.

MORGAN, Justice.

¶ 1 Respondent-father appeals from the trial court’s order terminating his 

parental rights to his minor child, M.S.A. (Mary1). In his sole argument on appeal, 

respondent-father asserts that his voluntary lack of communication with Mary from 

the inception of the period of his incarceration in November 2012 through the 

December 2019 private termination of parental rights hearing could not serve as a 

basis for the trial court’s conclusion that grounds existed to terminate his parental 

rights due to abandonment under N.C.G.S. § 7B-1111(a)(7) because the trial court did 

 

1 A pseudonym is used to protect the identity of the juvenile and for ease of reading.
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not find, nor does the evidence support a finding, that respondent-father’s failure to 

contact Mary was willful. Because we conclude that clear, cogent, and convincing 

evidence is contained in the record to show that respondent-father admittedly ignored 

his ability to contact his daughter or her caretaker, we affirm the termination order.

I. Factual and Procedural Background

¶ 2 This private termination action began on 12 December 2018 when petitioner,

who is Mary’s maternal great, great aunt, filed a petition seeking to terminate the 

parental rights of both of Mary’s parents.2 On 1 March 2019, petitioner filed an 

amended petition alleging that Mary had resided with her continuously from October 

2010 until the filing of the petition, and that she had exercised sole legal and physical 

custody of Mary since June 2011. Petitioner claimed that she had provided for Mary’s 

financial, medical, emotional, and physical needs during this time of Mary’s 

habitation with petitioner, and that petitioner would continue to be able to do so. 

Petitioner further alleged that respondent-father was incarcerated at the time of the 

filing of the petition, that he had not visited with or seen Mary since 2011, and that 

he had not provided financial support nor sent any gifts or correspondence to Mary 

for at least five years. Petitioner filed her action in order to seek the termination of 

the parental rights of respondent-father on the basis of willful abandonment under 

N.C.G.S. § 7B-1111(a)(7) (2019). Respondent-father filed an answer denying

 

2 Mary’s mother is not a party to this appeal.
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petitioner’s material allegations.

¶ 3 The petition was heard during the 19 December 2019 session of District Court, 

Davidson County. Respondent-father did not contest petitioner’s allegations that he 

had previously demonstrated the ability to communicate with Mary’s mother and 

family members while incarcerated3, but offered testimony that he did not possess

actual knowledge of the information that he needed to reach Mary or petitioner. On 

6 February 2020, the trial court entered an order terminating respondent-father’s 

parental rights, concluding that respondent-father had willfully abandoned Mary 

pursuant to N.C.G.S. § 7B-1111(a)(7) and that termination of respondent-father’s 

parental rights was in Mary’s best interests. Respondent-father appeals the trial 

court’s order, asking this Court to decide “whether an incarcerated parent who has 

not had contact with his child for eight years and does not know how to contact his 

child may lose his parental rights on the ground of abandonment.”

II. Analysis

 

3 Respondent-father takes exception with the trial court’s finding that he was also in 

regular contact with his attorney, arguing that he had simply testified that he knew how to 

get in contact with his attorney while incarcerated. Such an admission would appear to be

detrimental to respondent-father’s contention that the evidence in the record could not 

establish his ability to contact Mary or petitioner, as it appears that respondent-father knew 

how to contact a person who presumably possessed the wherewithal to obtain and relay the 

information to respondent-father which was necessary to contact Mary and petitioner. As 

explained below, however, this contested finding by the trial court is unnecessary to support 

the trial court’s ultimate conclusion and is therefore excluded by us from any consideration. 
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¶ 4 The North Carolina General Statutes set forth a two-step process for the 

termination of parental rights. After the filing of a petition for the termination of 

parental rights, a trial court conducts a hearing to adjudicate the existence or 

nonexistence of any grounds alleged in the petition as set forth in N.C.G.S. § 7B-1111. 

N.C.G.S. § 7B-1109(e) (2019). The petitioner carries the burden of proving by clear, 

cogent, and convincing evidence that grounds exist under N.C.G.S. § 7B-1111(a) to 

terminate a respondent-parent’s parental rights. In re A.U.D., 373 N.C. 3, 5–6, (2019). 

Upon an adjudication that at least one ground exists to terminate the parental rights 

of a respondent-parent, the trial court will then decide whether terminating the 

parental rights of the respondent-parent is in the child’s best interests. N.C.G.S. § 

7B-1110(a).

¶ 5 N.C.G.S. § 7B-1111(a)(7) states, in pertinent part, that the court may 

terminate parental rights upon a finding that the parent has willfully abandoned the 

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

petition. The only argument being voiced by respondent-father on this appeal

concerns the trial court’s adjudication that respondent-father willfully abandoned 

Mary. He contends that the trial court’s findings of fact do not support its ultimate 

conclusion of law that he willfully abandoned Mary pursuant to N.C.G.S. § 7B1111(a)(7).

¶ 6 When reviewing the trial court’s adjudication of the existence of a ground to 
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terminate the parental rights of a respondent-parent, we examine whether the trial 

court’s findings of fact “are supported by clear, cogent and convincing evidence and

[whether] the findings support the conclusions of law.” In re E.H.P., 372 N.C. 388, 

392 (2019) (quoting In re Montgomery, 311 N.C. 101, 111 (1984)). Any factual findings 

of the trial court left unchallenged by an appellant are “deemed supported by 

competent evidence and are binding on appeal.” In re T.N.H., 372 N.C. 403, 407, 

(2019). We review the trial court’s conclusions of law under a de novo standard. In re 

C.B.C., 373 N.C. 16, 19 (2019).

¶ 7 Section 7B-1111(a)(7) permits the trial court to terminate a parent’s rights 

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

months immediately preceding the filing of the petition or motion.” Id. “Abandonment 

implies conduct on the part of the parent which manifests a willful determination to 

forego all parental duties and relinquish all parental claims to the child.” In re B.C.B., 

374 N.C. 32, 35 (2020) (quoting In re Young, 346 N.C. 244, 251 (1997)). We have held 

that abandonment is evident when a parent “withholds his presence, his love, his 

care, the opportunity to display filial affection, and wil[l]fully neglects to lend support 

and maintenance[.]” Pratt v. Bishop, 257 N.C. 486, 501 (1962). “Although the trial 

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

parent’s credibility and intentions, the ‘determinative’ period for adjudicating willful 

abandonment is the six consecutive months preceding the filing of the petition.” In re 
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N.D.A., 373 N.C. 71, 77 (2019) (quoting In re D.E.M., 257 N.C. App. 618, 619 (2018)).

¶ 8 Respondent-father does not challenge the trial court’s findings of fact which 

reflect that respondent-father “has never written letters,” has never “sent gifts or 

cards,” has never “provided financially” for Mary, and has never contacted petitioner

“to inquire as to [Mary]’s well-being . . .” from the time of his incarceration in 

November 2012 until the filing of the amended termination petition on 1 March 2019. 

Nor does respondent-father dispute the trial court’s findings that respondent-father

had neither “made an effort to ensure that he has a relationship with the minor child,” 

nor “reached out to [p]etitioner to inquire as to the minor child’s well-being since the 

minor child came into [p]etitioner’s custody.” Instead, respondent-father contends 

that the trial court’s remaining findings of fact do not establish the willfulness of the 

total nonperformance of his parental duties toward Mary, both during the relevant 

six-month period and in prior years.

¶ 9 In two respects, respondent-father contests the following portion of the trial 

court’s Finding of Fact 14, which he considers to be the linchpin of the trial court’s

willfulness determination: 

While incarcerated, [r]espondent/father has always had 

the resources and ability to contact outside individuals, 

either through writing letters or by telephone. In fact, 

respondent/father stays in frequent contact with his family 

members and lawyers and has been in contact with 

respondent/mother. Respondent/father has never asked 

these individuals to assist him in getting in contact with 

Petitioner to inquire as to the minor child’s well-being, nor 
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has he asked for their help in maintaining a relationship 

with the minor child, despite having opportunities to do so.

First, respondent-father argues that he was not in “frequent contact” with his lawyers 

and that he had not contacted Mary’s mother since 2012. Second, respondent-father

contends that it is untrue that he never asked any family member for petitioner’s 

contact information, as he testified at the hearing that he asked petitioner’s sister for 

petitioner’s telephone number and “she wouldn’t give [respondent-father] that.” 

However, respondent-father concedes that Finding of Fact 14 is otherwise accurate 

to the extent that it shows that he “was in frequent contact with some of his family 

members and never asked those family members to help him contact [petitioner].”

Respondent-father’s further admission that “he wrote [the mother] one letter in 2012 

and did not hear back from [the mother]” is susceptible to the reasonable 

interpretation reflected in the trial court’s finding that “[r]espondent-father ha[d] 

been in contact with respondent[-]mother.” Further, although respondent-father 

offered uncontested testimony that he asked petitioner’s sister for the telephone 

number of petitioner in 2012, nevertheless this evidence does not dilute the veracity 

of the portion of the trial court’s Finding of Fact 14 that respondent-father had “never 

asked these individuals to assist him in getting in contact with [p]etitioner to inquire 

as to the minor child’s well-being.” A thorough analysis of the application of the 

provisions of N.C.G.S. § 7B-1111(a)(7) regarding the ground of abandonment to 

Finding of Fact 14 illustrates that respondent-father admits the validity of several of 
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the circumstances which the trial court determined in the finding and that 

respondent-father’s strongest example to support his interest in contacting 

petitioner—the request for her telephone number—occurred years outside of the 

determinative six-month statutory period. Respondent-father’s assertions are largely 

irrelevant to the gravamen of the ground of abandonment as to whether he 

manifested a “willful determination to forego all parental duties and relinquish all 

parental claims to the child.” In re B.C.B., 374 N.C. at 35.

¶ 10 This Court limits its “review to those challenged findings that are necessary to 

support the trial court’s determination that . . . parental rights should be 

terminated[.]” In re N.G., 374 N.C. 891, 900 (2020). Thus, even after disregarding the 

remaining segment of the trial court’s Finding of Fact 14 which is vigorously disputed 

by respondent-father that he “stays in frequent contact with his . . . lawyers,” the 

remainder of the trial court’s finding amply supports its conclusion that respondentfather willfully abandoned Mary. 

¶ 11 Respondent-father claims that, even though he “had the ability to contact 

people on the outside and that he did not ask those people to help contact [petitioner],”

it does not follow that he willfully abandoned Mary. This assertion suggests that 

respondent-father is introducing his incarceration as a mechanism by which to 

absolve his parental duty toward Mary and to allow him therefore to refrain from 

undertaking the effort to pursue parental involvement with Mary through contact 
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with those persons with whom he communicated during his incarceration. We have 

previously rejected such representations which respondent-father appears to foment:

Incarceration, standing alone, is neither a sword nor a 

shield in a termination of parental rights decision. 

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. at 19–20 (quoting In re D.E.M., 257 N.C. App. 618, 621 (2018))

(extraneity omitted).

¶ 12 Here, it is undisputed that respondent-father, at a minimum, possessed the 

ability to seek Mary’s contact information from his relatives but declined to do so for 

a number of years. The trial court’s unchallenged findings reflect that respondentfather did not utilize “whatever means available” to display his interest in Mary’s 

welfare during his incarceration. In re C.B.C., 373 N.C. at 19–20. Instead, 

respondent-father withheld his love, care, and filial affection from Mary, both in the 

statutorily relevant six-month period prior to the filing of the petition to terminate 

parental rights and in the years preceding that time span. See Pratt, 257 N.C. at 501. 

As this constitutes willful abandonment, the trial court did not err in adjudicating 

the existence of this ground pursuant to N.C.G.S. § 7B-1111(a)(7) in terminating 

respondent-father’s parental rights.

III. Conclusion
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¶ 13 Based on the foregoing, we conclude that the trial court properly determined 

that the parental rights of respondent-father were subject to termination pursuant to 

N.C.G.S. § 7B-1111(a)(7). Respondent-father does not challenge the trial court’s 

conclusion that termination of his parental rights was in Mary’s best interests. 

Consequently, we affirm the trial court’s order terminating respondent-father’s 

parental rights.

AFFIRMED.