Opinion
No. COA09-126.
Filed June 2, 2009.
Columbus County No. 05JT44.
Appeal by respondent-father from order entered 12 November 2008 by Judge Thomas V. Aldridge, Jr. in District Court, Columbus County. Heard in the Court of Appeals 7 May 2009.
Sherry Dew Prince for petitioner-appellee. Mary McCullers Reece for respondent-appellant.
I. Procedural History
On 14 July 2008, petitioner-mother filed a petition for termination of respondent-father's parental rights to their minor child, A.O.S. The parties were married on 11 March 2000 and divorced on 14 October 2005. A.O.S. is their only child from the marriage. In an order entered 12 November 2008, the trial court terminated the parental rights of respondent-father. From that order, respondent-father appeals.
II. Trial Court's Failure to Cite Standard of Proof
Respondent-father argues the trial court's failure to recite the standard of proof relied upon in terminating parental rights is reversible error. We agree. In the adjudicatory stage of a termination of parental rights proceeding, the trial court must determine that at least one ground for termination exists pursuant to N.C. Gen. Stat. § 7B-1111. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). "[A]ll findings of fact shall be based on clear, cogent, and convincing evidence." N.C. Gen. Stat. § 7B-1109 (f) (2007).
In In re Church, 136 N.C. App. 654, 658, 525 S.E.2d 478, 480 (2000), we held that in an order terminating parental rights, a failure to state that the findings of fact adduced from the adjudicatory hearing were based upon clear, cogent, and convincing evidence is reversible error.
Although the termination statute does not specifically require the trial court to affirmatively state in its order terminating parental rights that the allegations of the petition were proved by clear and convincing evidence, without such an affirmative statement the appellate court is unable to determine if the proper standard of proof was utilized.
. . . .
The trial court failed to recite the standard of proof applied in its adjudication order and its failure to do so is error. Petitioner contends that even if the trial court erred by not stating the standard of proof, the error should be deemed "harmless error where the Respondent-Appellant is not prejudiced and the trial court in fact based its decision upon sufficient evidence and testimony which was clear, cogent, and convincing to the trial court." However, since the trial court is required to state that the proper standard of proof has been applied, we cannot conclude the error here was harmless.
Id. at 657-58, 525 S.E.2d at 480.
We also considered this issue in In re J.D.S., 170 N.C. App. 244, 612 S.E.2d 350 (2005). Although the respondent in In re J.D.S. failed to assign error to the trial court's failure to recite the standard of proof relied upon in terminating parental rights, we held that even if the issue were preserved for our review, the trial court's oral statement on the record that "its findings of fact were based on `clear and convincing' evidence" was sufficient to determine that the proper standard of proof was applied. Id. at 253, 612 S.E.2d at 356.
In the present case, the trial court did not state the clear and convincing standard of proof in the written adjudication order, nor did it orally state the standard of proof during the hearing. Accordingly, the trial court's order terminating respondent-father's parental rights is vacated and remanded for a statement of the standard of proof applied in the trial court's adjudication order. Because we vacate the trial court's order, we need not address respondent-father's remaining arguments.
VACATED AND REMANDED.
Judges BRYANT and GEER concur.
Report per Rule 30(e).