Opinion
No. COA08-1583.
Filed June 2, 2009.
Cabarrus County No. 05JA222-223.
Appeal by Respondent-Father from order entered 15 May 2008 by Judge Donna H. Johnson in District Court, Cabarrus County. Heard in the Court of Appeals 6 May 2009.
Juanita B. Allen for Petitioner-Appellee Cabarrus County Department of Social Services. Richard E. Jester for Respondent-Appellant. Smith, Anderson, Blount, Dorsett, Mitchell Jernigan, L.L.P., by Jackson Wyatt Moore, Jr., for Guardian ad Litem.
Respondent-Father appeals from an order terminating his parental rights to his minor children, E.M.C. and P.A.C. The Cabarrus County Department of Social Services (DSS) filed a juvenile petition on 26 August 2005 alleging that E.M.C. and P.A.C. (the children) were neglected. The petition alleged that Respondent did not provide "proper care, supervision, or medical care" to the children and that they lived "in an environment injurious to their welfare."
Respondent entered into a consent order on 15 September 2005adjudicating the children neglected. At a review hearing on 1 December 2005, the trial court found that Respondent had made "minimal progress in addressing the issues which led to the placement of [the] children." At a review hearing on 22 June 2006, the trial court found that "[a]lthough [Respondent] . . . appears to be trying, there are still chronic issues present and that remain present in the home and family." At permanency planning hearings held on 1 September 2006 and 5 September 2006, the trial court found that Respondent had not "made reasonable effort in addressing the issues which led to the children's placement." The trial court further found that Respondent "will not maintain a suitable home for [the children]" and concluded that "[i]t is not possible for the children to be returned to [Respondent] within a reasonable period of time." As a result, the trial court changed the goal for the children from reunification with Respondent to adoption.
DSS filed a motion seeking termination of Respondent's parental rights to the children on 20 October 2006. Pursuant to N.C. Gen. Stat. §§ 7B-1111 (a)(1), (2), (3) and (6), DSS alleged four grounds for termination: (1) Respondent had neglected the children; (2) Respondent had willfully left the children in foster care for more than twelve months without showing that reasonable progress under the circumstances had been made in correcting those conditions that led to the removal of the children; (3) Respondent, for a continuous period of six months immediately preceding the filing of the motion, had willfully failed to pay a reasonable portion of the cost of care for the children although Respondent was physically and financially able to do so; and (4) Respondent was incapable of providing for the proper care and supervision of the children, such that they were dependent children, and there was a reasonable probability that such incapability would continue for the foreseeable future.
The trial court held a hearing on 22 January 2007 regarding DSS's motion to terminate Respondent's parental rights. At the hearing, the trial court concluded that grounds existed to terminate Respondent's parental rights. The trial court entered an order on 8 February 2007, finding that it was in the best interests of the children to terminate Respondent's parental rights. Respondent filed a notice of appeal on 19 February 2007. However, the Cabarrus County Clerk of Court's office had failed to maintain a complete recording of Respondent's termination hearing, preventing a copy of the transcript from being produced for Respondent's appeal. The trial court granted Respondent's motion to withdraw his notice of appeal and set another hearing regarding termination of Respondent's parental rights.
The trial court held an adjudication hearing on 17 April 2008 and found that pursuant to N.C. Gen. Stat. §§ 7B-1111 (a)(1), (2), (3), and (6), grounds existed to terminate Respondent's parental rights to the children. The trial court held a disposition hearing on 15 May 2008 and found it was in the best interests of the children to terminate Respondent's parental rights. Respondent filed notice of appeal on 11 June 2008 but failed to properly serve DSS with the notice of appeal. The trial court dismissed Respondent's appeal on 19 September 2008. Respondent filed a petition for writ of certiorari with our Court on 27 October 2008. Our Court granted Respondent's petition for writ of certiorari on 17 November 2008.
I.
In its brief, DSS requests that our Court dismiss Respondent's appeal due to Respondent's failure to properly serve his notice of appeal upon DSS. However, Respondent filed a petition for writ of certiorari on 27 October 2008 admitting he did not serve the notice of appeal on DSS in accordance with the North Carolina Rules of Appellate Procedure, but petitioning our Court to review his appeal on the merits despite his error. Our Court granted Respondent's petition for writ of certiorari and therefore DSS's request to dismiss Respondent's appeal is denied.
II.
Respondent argues in his assignment of error number thirty, that the trial court lacked subject matter jurisdiction to enter an order terminating Respondent's parental rights to the children because the allegations in DSS's motion to terminate Respondent's parental rights did not comply with N.C. Gen. Stat. § 7B-1104 (6).
N.C. Gen. Stat. § 7B-1104 (6) requires that a motion for termination of parental rights state "[f]acts that are sufficient to warrant a determination that one or more of the grounds for terminating parental rights exist." N.C. Gen. Stat. § 7B-1104 (6) (2007). The factual allegations "must be sufficient to put a respondent on notice regarding the acts, omissions, or conditions at issue in the petition." In re A.D.L., J.S.L., C.L.L., 169 N.C. App. 701, 709, 612 S.E.2d 639, 644 (citing In re Hardesty, 150 N.C. App. 380, 384, 563 S.E.2d 79, 82 (2002)), disc. review denied, 359 N.C. 852, 619 S.E.2d 402 (2005). "[M]erely us[ing] words similar to those in the statute setting out grounds for termination" is not sufficient. Hardesty, 150 N.C. App. at 384, 563 S.E.2d at 82.
However, our Court has held that "sufficiently detailed allegations need not appear on the face of the petition but may be incorporated by reference." In re H.T., 180 N.C. App. 611, 617, 637 S.E.2d 923, 927 (2006). In In re H.T., our Court found that although the allegations in the petition alleging the grounds for termination were a "bare recitation" of the statute, because the petition incorporated the "entire [c]ourt file," the petition alleged sufficient facts to determine whether grounds for termination existed. Id. at 618, 637 S.E.2d at 927. Therefore, the trial court had subject matter jurisdiction. Id. at 618, 637 S.E.2d at 928.
In the present case, the grounds stated in DSS's 6 October 2006 motion to terminate Respondent's parental rights tracked the statutory language of N.C. Gen. Stat. §§ 7B-1111 (a)(1), (2), (3), and (6), without providing any facts specifically relating to Respondent and the children. However, DSS attached the 26 August 2005 custody order to DSS's motion to terminate Respondent's parental rights. The attached custody order incorporated by reference the 26 August 2005 juvenile petition, which alleged sufficient facts to put Respondent on notice regarding the acts, omissions, or conditions at issue. See In re H.T.; In re A.D.L. Therefore, we find Respondent's first argument without merit and overrule his assignment of error.
III.
Although Respondent assigns error to the trial court's findings of fact, he limits his argument on appeal to arguing that the trial court's findings of fact do not support its conclusions of law. In Respondent's assignment of error number twenty-six, Respondent argues the trial court's findings of fact do not support its conclusion of law number three that "there is a probability of the repetition of neglect in the future and that [Respondent] has willfully left the children in foster care for more than twelve months without showing to the Court that reasonable progress has been made in correcting the issues which led to placement."
Termination of parental rights cases involve a two-step process. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). We review the adjudicatory stage to determine "whether the trial court's findings of fact are based on clear, cogent, and convincing evidence and whether those findings support the trial court's conclusion that grounds for termination exist pursuant to N.C. Gen. Stat. § 7B-1111 ." In re C.W. J.W., 182 N.C. App. 214, 219, 641 S.E.2d 725, 729 (2007).
Respondent states the trial court's finding of fact number nine was used to support its conclusion that there was a probability of repetition of neglect and that Respondent failed to make reasonable progress. Respondent admits that "some of the finding is true" but argues the finding is not "sufficient" to support the conclusion. Respondent contends the trial court relied on "old information" and that Respondent's compliance with DSS's case plan was "more than minimally adequate."
[T]he trial court must admit and consider all evidence of relevant circumstances or events which existed or occurred before the adjudication of abuse [or neglect], as well as any evidence of changed conditions in light of the evidence of prior abuse [or neglect] and the probability of a repetition of that abuse [or neglect].
In re Greene, 152 N.C. App. 410, 417, 568 S.E.2d 634, 638 (2002) (citations omitted).
The trial court made extensive findings regarding the unsanitary and inhabitable condition of Respondent's home and the ability but willful failure of Respondent to keep his home fit for the children. The trial court stated that "the home was filthy and hazardous" with "cat feces on the floor" and the floor "so cluttered that there was no where to walk without stepping on something." The trial court found that Respondent was able to improve the condition of his home when expecting visits from the social worker. However, when the social worker made unannounced visits to Respondent's home, it was "filthy," "flies were everywhere," and "cat feces were on the floor of the kitchen." Further, the trial court noted that the children were diagnosed with a highly contagious and potentially deadly disease, necessitating the importance of keeping the children's environment clean. In the trial court's findings of fact, the trial court took judicial notice of all previous orders in the children's court file. At two previous review hearings the trial court found Respondent had made "minimal progress in addressing the issues which led to the placement of [the] children" and found that "[a]lthough [Respondent] . . . appears to be trying, there are still chronic issues present and that remain present in the home and family." At the permanency planning hearing, the trial court found that Respondent had not "made reasonable effort in addressing the issues which led to the children's placement." The trial court further found that Respondent "will not maintain a suitable home for [the children]" and that "it is not possible for the children to be returned to [Respondent] within a reasonable period of time."
In addition, the trial court's findings of fact demonstrate the trial court considered recent evidence as to whether Respondent was making progress with his case plan. During the adjudication hearing to terminate Respondent's parental rights, the trial court found that the social worker attempted to visit Respondent's home fifteen times between June 2007 and January 2008, but was unsuccessful. When the social worker gained entry into Respondent's home on 27 February 2008 "there were still clothes piled high, cigarette butts . . . on the floor [and] . . . holes in the walls." In addition, "[t]he home smelled of urine." When the social worker visited Respondent's home on 14 March 2008, "[d]og feces were on the floor."
Respondent contends this progress was "minimally adequate" and thus the trial court's findings do not support the court's conclusions. However, the ground for terminating a parent's rights under N.C. Gen. Stat. § 7B-1111 (a)(2) is failure to show "to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile." N.C. Gen. Stat. § 7B-1111 (a)(2) (emphasis added). After review of the trial court's findings we hold the findings of fact are supported by clear and convincing evidence. We further hold the findings of fact support the trial court's conclusion that Respondent did not make "reasonable progress" and that the children were neglected and there was a probability of repetition of neglect.
In light of our holding with respect to these grounds of termination, we need not address Respondent's remaining assignments of error. See N.C. Gen. Stat. § 7B-1111 (a) (2007) ("The court may terminate the parental rights upon a finding of one or more of the following. . . ."); In re D.B., C.B., 186 N.C. App. 556, 561, 652 S.E.2d 56, 60 (2007) ("Where a trial court concludes that parental rights should be terminated pursuant to several of the statutory grounds, the order of termination will be affirmed if the court's conclusion with respect to any one of the statutory grounds is supported by valid findings of fact."), aff'd per curiam, 362 N.C. 345, 661 S.E.2d 734 (2008).
Affirmed.
Judges ROBERT C. HUNTER and BEASLEY concur.
Report per Rule 30(e).