Opinion
No. COA09-901.
Filed January 5, 2010.
Watauga County No. 06 J 41.
Appeal by respondent-mother from orders entered 27 April 2009 by Judge Ted McEntire in Watauga County District Court. Heard in the Court of Appeals 7 December 2009.
Di Santi Watson Capua Wilson, by Andrea N. Capua and Chelsea B. Garrett, for petitioner-appellee. Charlotte Gail Blake for respondent-appellant mother. Hunton Williams LLP, by Eric M.D. Zion, for appellee guardian ad litem.
Respondent-mother Marion K. appeals from the trial court's orders terminating her parental rights with respect to her daughter J.P. We agree with respondent-mother's contention that the trial court failed to make adequate findings of fact in support of its conclusion of law that grounds existed to terminate her parental rights. Accordingly, we reverse and remand.
Facts
Respondent-mother and respondent-father Joshua P. are the biological parents of J.P., who was born in 2001 in Tennessee. Respondent-mother has two older children who live with her mother and one older child who lives with her sister. The Watauga County Department of Social Services ("DSS") became involved with respondent-mother and J.P. in September 2006, when respondent-mother, who was homeless at the time, went out of town to attend a court hearing and left J.P. with a woman whose children where in DSS' custody. After respondent-mother failed to return by the time she told her friend, DSS filed for and obtained non-secure custody of J.P. DSS subsequently filed a juvenile petition alleging that J.P. was a neglected and dependent juvenile. The petition alleged that respondent-mother left J.P. with an inappropriate caretaker and that the home was "environmentally inappropriate" for the child at her age.
Respondent-father is currently incarcerated in Tennessee for sex offenses with a minor. He has not appealed from the trial court's orders terminating his parental rights, and, therefore, is not a party to this appeal.
On 20 September 2006, respondent-mother entered into a case plan which required, among other things, respondent-mother to obtain suitable housing, work with Family Solutions, attend parenting classes, and submit to regular drug testing. At a 30 October 2006 adjudication hearing, respondent-mother stipulated that J.P. was a neglected juvenile and the trial court ordered custody of J.P. to continue with DSS and ordered respondent-mother to continue to work on her case plan.
Review hearings were conducted in January 2007, May 2007, July 2007, and October 2007. On 28 October 2007, J.P. was returned to respondent-mother's care in a temporary placement. At the next review hearing held on 19 November 2007, the court noted that the placement was going well and that respondent-mother was doing well in completing her case plan. The plan remained reunification, although the court warned that it would have "zero tolerance" for respondent-mother's live-in boyfriend, in the event that he tested positive for drugs or if any domestic violence occurred. DSS was ordered to make frequent and random home visits.
Review hearings were held in January 2008 and February 2008. In a report prepared by DSS for a 12 May 2008 review hearing, DSS noted that during the time J.P. lived with respondent-mother, J.P. frequently arrived late to school or not all. J.P. was transferred to a different school to catch a bus nearer respondent-mother's home in an attempt to alleviate transportation problems. On 7 May 2008, J.P.'s school reported to a social worker that she had actually lost skills during the school year and that her "lack of progress was severe enough that it would keep [J.P.] from being promoted to the first grade." The report also noted respondent-mother's boyfriend's lack of progress with the case plan. J.P. also told a teacher that when her mother took her boyfriend to work, she was left at home and allowed to do whatever she wanted, including going outside to play. On one occasion, J.P. reported getting off the bus after school and there was no one at home to meet her. Respondent-mother and her boyfriend denied leaving J.P. home alone and explained that on the day J.P. was not picked up, respondent-mother had been confused about when the bus was arriving. Based on these concerns, on 7 May 2008, DSS decided to move J.P. back to her previous foster home.
In the order entered after the 12 May 2008 hearing, the trial court stated that J.P. had been placed in foster care "due to the Respondent Mother's inability to provide stable housing and to provide a stable environment." The court ordered respondent-mother to continue working on her case plan and directed DSS to continue pursuing reunification efforts. The court ordered all visitation between respondent-mother and the juvenile to cease.
On 3 July 2008, DSS filed a motion to be relieved of reunification efforts, and J.P.'s guardian ad litem ("GAL") submitted a report in support of DSS' request. In granting DSS' motion, the trial court noted that "[s]ince removing the Juvenile in May 2008, Respondent Mother has not made any significant progress. She has not had any significant contact with DSS, and DSS has been unable to work on reunification if the Respondent Mother continues her failure to be involved with DSS." Consequently, the court determined that further reunification efforts would be futile and relieved DSS of its responsibility to pursue reunification.
At the next hearing, held on 20 October 2008, the trial court considered a request by respondent-mother to have her visitation rights reinstated. The trial court determined that resuming visitation would not be in the best interests of the child and changed the permanent plan to adoption. No changes were made at review hearings in December 2008 and January 2009.
On 14 January 2009, DSS filed a motion for termination of parental rights ("TPR") with respect to both of J.P.'s parents. The motion alleged that respondent-mother neglected the juvenile by not providing proper care, supervision and discipline, that the home constituted an environment injurious to J.P.'s welfare, and that respondent-mother failed to adhere to the requirements of her case plan. The TPR motion also alleged that J.P. was a dependent juvenile in that respondent-mother is incapable of providing for the proper care and supervision of J.P. Respondent-mother filed an answer on 16 February 2009 denying the existence of the alleged grounds for termination of her parental rights.
After conducting the TPR hearing on 30 March 2009, the trial court entered an order on 27 April 2009, finding that DSS presented clear, cogent and convincing evidence of grounds for termination "pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), (2), (3), (6), and (7)." In a separate dispositional order the trial court concluded that termination of respondent-mother's parental rights is in the best interests of J.P. and ordered that her rights be terminated. Respondent-mother timely appealed to this Court.
Discussion
Respondent-mother first argues on appeal that the trial court erred in determining that grounds existed to terminate her parental rights under N.C. Gen. Stat. § 7B-1111(a)(2) (2007) (willful failure to make reasonable progress), N.C. Gen. Stat. § 7B-1111(a)(3) (willful failure to pay cost of care), and N.C. Gen. Stat. § 7B-1111(a)(7) (willful abandonment), when these grounds were not alleged in DSS' motion. A respondent must be given notice of the specific grounds for termination of parental rights in the motion or petition to terminate parental rights. In re B.L.H. Z.L.H., 190 N.C. App. 142, 147, 660 S.E.2d 255, 257, aff'd per curiam, 362 N.C. 674, 669 S.E.2d 320 (2008). "[W]here a respondent lacks notice of a possible ground for termination, it is error for the trial court to conclude such a ground exists." Id., 669 S.E.2d at 258.
DSS' TPR motion alleged that: (1) respondent-mother had neglected J.P. under N.C. Gen. Stat. § 7B-1111(a)(1) in that she "ha[d] not provided [J.P.] with proper care, supervision, and discipline and the Respondent Mother's home is an environment injurious to [J.P.]'s welfare"; and (2) J.P. was a dependent juvenile pursuant to N.C. Gen. Stat. § 7B-1111(a)(6) in that "Respondent Mother is incapable of providing for the proper care and supervision of [J.P.] . . . and there is a reasonable probability that such incapability will continue for the foreseeable future." As there are no factual allegations in the TPR motion regarding the other three grounds listed in the trial court's orders — N.C. Gen. Stat. § 7B-1111(a)(2), (a)(3), and (a)(7) — respondent-mother did not receive proper notice of them. See B.L.H., 190 N.C. App. at 148, 660 S.E.2d at 258 (holding factual allegations in petition "did not put respondent on notice that N.C.G.S. § 7B-1111(a)(2) was a possible ground for terminating her parental rights to the minor children"). Consequently, the trial court erred in basing termination of respondent-mother's parental rights on these grounds. The allegations in the TPR motion, however, provided proper notice to respondent-mother that her parental rights might be terminated on the basis of dependency or neglect. See In re A.H., 183 N.C. App. 609, 615, 644 S.E.2d 635, 639 (2007) (holding factual allegation in TPR petition were sufficient to put respondent on notice of dependency as potential ground for termination); In re Humphrey, 156 N.C. App. 533, 539, 577 S.E.2d 421, 426 (2003) (holding "factual allegations [in TPR petition] were sufficient to give respondent notice regarding the issue of neglect").
With respect to these two grounds, respondent-mother contends that the trial court's findings of fact are inadequate to support its conclusion of law that J.P. is a dependent and neglected juvenile. Termination of parental rights may be based on one or more grounds set out in N.C. Gen. Stat. § 7B-1111. Only one ground is necessary to support termination of parental rights. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990). The standard for review in termination of parental rights cases is whether the court's findings of fact are based on clear, cogent, and convincing evidence and whether the court's findings support its conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001).
As for the ground of dependency, the trial court may terminate parental rights based on a finding "[t]hat the parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101, and that there is a reasonable probability that such incapability will continue for the foreseeable future. . . ." N.C. Gen. Stat. § 7B-1111(a)(6). N.C. Gen. Stat. § 7B-101(9) (2007) defines a dependent juvenile as "[a] juvenile in need of assistance or placement because . . . [the juvenile's] parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement." Under this definition, the trial court's findings "must address both (1) the parent's ability to provide care or supervision, and (2) the availability to the parent of alternative child care arrangements." In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005).
In support of its conclusion that multiple grounds existed to terminate respondent-mother's parental rights, the trial court found:
8. On October 30, 2006 a consent order was agreed to between the parties and the juvenile was adjudicated as neglected.
9. The Juvenile is currently placed in foster care due to the Respondent Mother's inability to provide a healthy and safe environment on a consistent basis and for the juvenile for any extended period of time.
10. Grounds exist pursuant to N.C. Gen. Stat. § 7B-1111 for terminating the parental rights of the Respondent Mother . . ., to wit:
a. Respondent Mother has neglected the juvenile as described in N.C. Gen. Stat. § 7B-101 and is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of N.C. Gen. Stat. § 7B-101 and there is a reasonable probability that such incapability will continue for the foreseeable future. In support of these grounds, the Court finds that,
i. The child has been in the custody of DSS for well over 2½ years now.
ii. While, during the pendency of this case, Mother had completed her case plan and made progress, she was unable to sustain a healthy and safe living environment for the Juvenile for an extended period of time;
iii. After the Juvenile was placed back in the care of her Mother, the living environment got progressively worse.
iv. While Respondent Mother has been able to provide a suitable housing structure to live in, that is not enough to create a safe, healthy, stable and sufficient home for the Juvenile.
v. As recently as Fall 2008, there was [sic] no furnishings in Mother's house.
vi. In March 2008, a DSS social worker visited her home and found that the door had been axed in and a window broken.
vii. Respondent Mother has continued to ass ociate with individuals who have substance abuse problems and has allowed alcohol back in the house from time to time.
viii. Respondent Mother has not, on a consistent basis, followed the services and therapy recommendations of Family Solutions.
ix. The Juvenile's academic and social abilities improved when she was removed from the home and digressed during the time she was place[d] in the physical custody and care of Respondent Mother, then improved again when she was removed from the home a second time.
x. The Juvenile had numerous unexcused absences at school during the time she was in the Mother's care, even after she requested that DSS change the Juvenile's school so that she could take the bus to and from school due to transportation problems.
Respondent-mother contends that the trial court's findings are inadequate to support termination based on dependency as the court failed to make the necessary finding under N.C. Gen. Stat. § 7B-101(9) that respondent-mother lacked an appropriate alternative child care arrangement. Nowhere in the trial court's findings does it address whether respondent-mother has an appropriate alternative child care arrangement for J.P. Consequently, the trial court's findings do not support a conclusion of dependency. See P.M., 169 N.C. App. at 428, 610 S.E.2d at 407 (holding trial court erred in terminating respondent's parental rights based on dependency when "trial court never addressed the second prong of the dependency definition").
Respondent-mother similarly argues that the trial court's findings do not support its conclusion of neglect. The Juvenile Code defines a neglected juvenile in pertinent part as
[a] juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law. . . .
N.C. Gen. Stat. § 7B-101(15). "A finding of neglect sufficient to terminate parental rights must be based on evidence showing neglect at the time of the termination proceeding." In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997). However, "to require that termination of parental rights be based only upon evidence of events occurring after a prior adjudication of neglect which resulted in removal of the child from the custody of the parents would make it almost impossible to terminate parental rights on the ground of neglect." In re Ballard, 311 N.C. 708, 714, 319 S.E.2d 227, 232 (1984). Consequently, where, as here, "a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, the trial court must employ a different kind of analysis to determine whether the evidence supports a finding of neglect." In re Pierce, 146 N.C. App. 641, 651, 554 S.E.2d 25, 31 (2001), aff'd, 356 N.C. 68, 565 S.E.2d 81 (2002). In this situation, the trial court may consider "evidence of neglect by a parent prior to losing custody of a child — including an adjudication of such neglect" — as long as it "also consider[s] any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect." Ballard, 311 N.C. at 715, 319 S.E.2d at 232.
Respondent-mother argues that the trial court failed to make any findings addressing the probability of future neglect if J.P. were returned to her care, and, therefore, the court's findings do not support a conclusion of neglect. Both DSS and GAL counter by pointing to the trial court's finding that
Respondent Mother has neglected the juvenile as described in N.C. Gen. Stat. § 7B-101 and is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of N.C. Gen. Stat. § 7B-101 and there is a reasonable probability that such incapability will continue for the foreseeable future.
(Emphasis added.) They maintain that the italicized portion relates both to N.C. Gen. Stat. § 7B-1111(a)(6)'s requirement that the trial court make findings regarding the probability that the respondent's actions that led to the dependency will be repeated as well as to N.C. Gen. Stat. § 7B-101(9)'s requirement that the trial court make findings as to the probability of the repetition of neglect.
DSS and GAL are correct that under North Carolina law N.C. Gen. Stat. § 7B-1111(a)(6) and N.C. Gen. Stat. § 7B-101(9) both mandate findings regarding future conduct of the respondent. Contrary to their contention, however, the italicized language in the court's finding can only reasonably be read to relate to N.C. Gen. Stat. § 7B-1111(a)(6)'s requirement concerning future incapacity to care for the juvenile by the parent. This portion of the court's finding tracks the language of N.C. Gen. Stat. § 7B-1111(a)(6) verbatim. It indicates nothing about future repetition of neglect under N.C. Gen. Stat. § 7B-101(9) as required by our caselaw. We conclude, therefore, that this portion of the court's finding relates only to the ground of dependency — not to neglect. The trial court's findings are thus inadequate to support termination of respondent-mother's parental rights based on neglect.
In sum, although the trial court made some findings regarding the grounds of dependency and neglect, it failed to make findings sufficient to support either ground for termination. Consequently, we reverse the trial court's orders terminating respondent-mother's parental rights and remand for the trial court to make further findings on these issues.
Reversed and remanded.
Judges BRYANT and JACKSON concur.
Report per Rule 30(e).