In re Estate of Lunsford4/7/2005
daughter over a seventeen-year period failed to reflect the degree of "presence," "love," "care," and "opportunity to display filial affection" that defines non-abandoning parents. McKinney, 357 N.C. at 489-90, 586 S.E.2d at 263.
In re Young, 346 N.C. 244, 485 S.E.2d 612 (1997), an appeal arising out of an action to terminate parental rights, is relevant to this discussion. In Young, we held that a non- custodial mother who had only limited contact with her child over a period of six months had not abandoned her child. Id. at 251-52, 485 S.E.2d at 616-17. Young, however, is factually and procedurally distinguishable from the instant case.
First, the record in Young indicated that members of the father's family who were caring for the child during the six- month period at issue had a hostile relationship with the non- custodial mother and that, for at least part of this time, the mother may not have known the location of her child. Id. In addition, the record included testimony regarding the mother's surgical treatment for breast cancer during the period of alleged abandonment, including testimony that she asked to see the child before her surgery and that the child's father denied this request. Id. In the present case, by contrast, Lunsford admittedly had only sporadic contacts with Candice over the last seventeen years of her life, as opposed to a mere six months, and the major factors preventing Lunsford from participating more fully in his daughter's life were his own alcoholism and immaturity.
Moreover, the issue of abandonment in Young arose not from a dispute over inheritance rights, but in the context of an action to terminate parental rights. Thus, the father's burden of proof to show that the mother abandoned her child was not the "preponderance of the evidence" standard applicable in most civil actions, see, e.g., Wyatt v. Queen City Coach Co., 229 N.C. 340, 342, 49 S.E.2d 650, 652 (1948), but the heightened evidentiary standard of "clear, cogent, and convincing evidence," Young, 346 N.C. at 247, 485 S.E.2d at 614 (citing N.C.G.S. § 7A-289.30(d),(e) (1995)). Thus, Young does not control our resolution of the present action.
In his brief, Lunsford argues that while the facts found by the trial court may support a conclusion that he provided little towards the maintenance of Candice, they do not support a conclusion that he intended to abandon her care. Because N.C.G.S. § 31A-2 mandates that a parent who abandons the "care and maintenance" of a child loses the right to inherit from that child, Lunsford contends, the abandonment of either "care" or "maintenance" alone is insufficient to trigger the statute. N.C.G.S. § 31A-2 (emphasis added).
In support of his argument, Lunsford cites our decision in McKinney, where we held that a parent must "resume both the 'care and maintenance' of the child" to fall within the first exception to section 31A-2. McKinney, 357 N.C. at 491, 586 S.E.2d at 264 (quoting N.C.G.S. § 31A-2(1)). Admittedly, McKinney describes the duty of "care" as pertaining primarily to "love and concern for the child," and the duty to provide "maintenance" as referring more specifically to the "financial support of a child during minority." Id. A broader view of our cases, however, suggests that these parental duties are interrelated components of a parent's overall responsibilities for his or her minor children. See, e.g., Price v. Howard, 346 N.C. 68, 76, 484 S.E.2d 528, 533 (1997) (stating that the "'custody, care and nurture of the child reside first in the parents'" (quoting Prince v. Massachusetts, 321 U.S. 158, 166, 88 L.Ed. 645, 652 (1944))); Pratt, 257 N.C. at 501, 126 S.E.2d at608 (referring to the parental duties of "love," "car
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