Matter of Adoption of Maynor

248 S.E.2d 875 (1978)

38 N.C. App. 724

In the Matter of the ADOPTION OF Randall Preston MAYNOR.

No. 7816SC62.

Court of Appeals of North Carolina.

November 21, 1978.

*876 Seawell, Pollock, Fullenwider, Robbins & May by Bruce T. Cunningham, Jr., Carthage, for respondent-appellant.

Horace Locklear, Lumberton, for petitioner-appellee.

CLARK, Judge.

Respondent contends that the petitioners presented insufficient evidence of willful abandonment to withstand the respondent's motion for directed verdict.

G.S. 48-2(3a) provides:

"For the purpose of this Chapter, an abandoned child shall be any child who has been willfully abandoned at least six consecutive months immediately preceding institution of an action or proceeding to declare the child to be an abandoned child. . . ."

"[A]bandonment imports any wilful or intentional conduct on the part of the parent *877 which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child." Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962). See, In re Dinsmore, 36 N.C.App. 720, 245 S.E.2d 386 (1978).

"Wilfulness is as much an element of abandonment within the meaning of G.S. § 48-2, as it is of the crime of abandonment." In re Adoption of Hoose, 243 N.C. 589, 594, 91 S.E.2d 555, 558 (1956). The word "willful" means something more than an intention to do a thing. It implies doing the act purposely and deliberately. State v. Whitener, 93 N.C. 590 (1885). Manifestly, one does not act willfully in failing to make support payments if it has not been within his power to do so. See, Lamm v. Lamm, 229 N.C. 248, 49 S.E.2d 403 (1948). A mere failure to provide support does not, in and of itself, constitute abandonment since explanations could be made which would be inconsistent with the willful intent to abandon. Pratt, supra. In the case sub judice the respondent's evidence tends to show that he was not aware that the child had been placed in the custody of the Department of Social Services, that he was unable to locate his son, and that as a result of his incarceration, he was unable to make any payments to support the child. Under the principles of Pratt, supra, the fact that the respondent was unable to locate his son and was unable to make support payments as a result of his incarceration, is inconsistent with a willful intent to abandon his son.

Petitioners contend that the fact that respondent committed the felony of crime against nature, was found guilty and was incarcerated, evinces a willful intent to forego any responsibility to the child. We cannot agree. "[T]he termination of parental rights is a grave and drastic step." In re Dinsmore, supra, 36 N.C.App. at 726, 245 S.E.2d at 389. The legislature recognized this by requiring that the abandonment must be willful. The fact that a parent commits a crime which might result in incarceration is insufficient, standing alone, to show a "settled purpose to forego all parental duties." Pratt, supra.

The commission of a crime may be relevant, or even determinative, on the issue of whether a parent forfeits parental rights because of unfitness under the provisions of G.S. §§ 7A-289.32(2) and 278(4). But in the case sub judice, the pleadings presented only the issue of abandonment and that single issue was submitted to the jury. The record on appeal indicates that the victim of respondent's crime against nature was his daughter. We do not speculate upon the result if the pleadings had been cast to present the issue of unfitness. Nor do we speculate upon the right of the petitioners to proceed anew for the purpose of presenting the issue of respondent's unfitness.

In addition to the definition of "abandonment" contained in G.S. 48-2(3a), as clarified by case law, we find that G.S. 48-2(3b) contains another definition of abandonment applicable to those cases in which the parent places the child in the custody of the Department of Social Services. The statute provides as follows:

"[A]n abandoned child . . . shall be a child who has been placed in the care of a child-caring institution or foster home, and whose parent . . . has failed substantially and continuously for a period of more than six months to maintain contact with such child, and has willfully failed for such period to contribute adequate support to such child, although physically and financially able to do so. In order to find an abandonment under this subdivision, the court must find the foregoing and the court must also find that diligent but unsuccessful efforts have been made on the part of the institution or a child-placing agency to encourage the parent . . . to strengthen the parental or custodial relationship to the child."

The petitioners presented no evidence that the Department of Social Services made any contact whatsoever with the respondent, and the trial judge failed to instruct the jury on this additional element of the definition of abandonment.

*878 Since the evidence is not sufficient to support the verdict, the judgment is

Reversed and remanded.

ARNOLD and ERWIN, JJ., concur.