Opinion
No. COA07-1313-2.
Filed 6 May 2008.
1. Termination of Parental Rights — failure to allege grounds in petition — no right to amend petition
The trial court erred in a termination of parental rights case by allowing an amendment to the petition to conform to evidence presented at the hearing that grounds existed to terminate respondent mother's rights under N.C.G.S. § 7B-1111(a)(2), that the children had been left in a foster care or out of home placement for a period of twelve months preceding the filing of the petitions, when such grounds were not initially alleged in the petitions because: (1) the only ground found by the trial court for terminating respondent's parental rights was under § 1111(a)(2); (2) Article 11 of Chapter 7B expressly states that the general legislative purpose of the Article is to provide judicial procedures for terminating the legal relationship between a juvenile and the biological or legal parents, and Article 11 is entirely silent on the amendment of petitions or motions in termination proceedings; (3) the only right of amendment permitted in Chapter 7B proceedings is for the amendment of a petition in juvenile, abuse, neglect or dependency proceedings, and this right is limited to when the amendment does not change the nature of the conditions upon which the petition is based; and (4) the Court of Appeals will not superimpose a right to amend a petition or motion for termination of parental rights to conform with the evidence presented at the adjudication hearing.
2. Termination of Parental Rights — grounds — sufficiency of notice
The original petition to terminate respondent mother's parental rights was not sufficient on its face to support the findings of the trial court and put respondent on notice that N.C.G.S. § 7B-1111 (a)(2), that the children had been left in a foster care or out of home placement for a period of twelve months preceding the filing of the petitions, was a possible ground for terminating her parental rights, and the order is reversed because: (1) the petitions clearly alleged that petitioner obtained nonsecure custody of both minor children on 10 March 2006, and at the time the petitions were filed on 30 January 2007 and 5 February 2007, the minor children had not been in foster care or placement outside the home for more than twelve months; (2) given the filing dates of the petitions, respondent was assured that N.C.G.S. § 7B-1111(a)(2) was not a possible ground for terminating her parental rights absent the filing of amended petitions; and (3) the trial court found no other grounds existed for the termination of respondent's parental rights.
Judge STEELMAN dissenting.
Appeal by respondent from orders entered 25 July 2007 by Judge Marvin P. Pope, Jr. in Buncombe County District Court. Originally heard in the Court of Appeals 18 February 2008. An opinion vacating the order of the trial court was filed by this Court on 4 March 2008. Petition for Rehearing by Cumberland County Department of Social Services was filed on 24 March 2008, granted on 26 March 2008, and heard without additional briefs or oral argument. This opinion supersedes the previous opinion filed on 4 March 2008.
Charlotte W. Nallan for petitioner-appellee Buncombe County Department of Social Services. Annick Lenoir-Peek for respondent-appellant mother. Jerry W. Miller for the Guardian ad Litem.
C.L.H. ("respondent") appeals from orders terminating her parental rights to B.L.H. and Z.L.H. (collectively "the minor children"). Respondent is the biological mother of the minor children. The biological fathers of B.L.H. and Z.L.H. are unknown and respondent indicated she does not know the identity of the biological fathers. Although the legal father of Z.L.H. was identified, DNA testing confirmed that he was not the biological father.
On 30 January 2007 and 5 February 2007, the Buncombe County Department of Social Services ("petitioner") filed petitions and issued summonses for an action to terminate respondent's parental rights to B.L.H. and Z.L.H. Petitioner specifically alleged as grounds for terminating respondent's parental rights to B.L.H. and Z.L.H. that:
Pursuant to N.C.G.S. § 7B-1111(a)(1), the respondent mother has neglected the minor [children] . . . [and that t]here is a high risk of repetition of neglect if the [minor children are] returned to the care and custody of the respondent mother. . . .
Pursuant to N.C.G.S. § 7B-1111(a)(3), the minor [children have] been in the custody of the Department and in an out-of-home or foster-care placement for a continuous period of more than six months preceding the filing of this petition and, during this time, the respondent mother has willfully failed to pay a reasonable portion of the cost of care for the minor [children], although the respondent mother is able-bodied and capable of full time employment. . . .
Respondent and the minor children were timely served copies of the summonses and petitions to terminate her parental rights to the minor children. Petitioner accomplished service by publication for the unknown fathers.
The petitions were heard on 16 May 2007 and 4 June 2007. At the adjudication hearing, petitioner's first witness was Andrea Biffle, the social worker supervising the minor children's foster care. Ms. Biffle testified to the history of the custody and placement of the minor children from 25 August 2005, when petitioner first became involved with the children, to 10 March 2006, when petitioner first assumed custody over the minor children. Petitioner then moved to amend the petitions to conform to the evidence presented to include an allegation that grounds existed to terminate respondent's parental rights under N.C.G.S. § 1111(a)(2), arguing the children had been left in a foster care or out of home placement for a period of twelve months preceding the filing of the petitions. Defendant objected, arguing she received no notice of the allegation and that such an amendment was a substantial change to the petitions requiring additional time to prepare a defense. The trial court overruled defendant's objection and allowed the amendment.
On 25 July 2007, the trial court entered separate orders terminating respondent's parental rights to B.L.H. and Z.L.H. The only ground found by the trial court for terminating respondent's parental rights to the minor children was under N.C.G.S. § 1111(a)(2). Respondent appeals.
I. Amendment of Petition
Respondent argues the trial court erred in finding and concluding that grounds existed to terminate respondent's parental rights under N.C.G.S. § 1111(a)(2) when such grounds were not alleged in the petitions. Respondent contends the trial court erred in permitting petitioner to amend its petitions to conform to the evidence presented at the adjudication hearing to add N.C.G.S. § 1111(a)(2) as an alleged ground of termination. Petitioner's response is that the trial court correctly allowed the petitions to be amended under Rule 15(b) of the North Carolina Rules of Civil Procedure. We disagree.
This Court has held that the North Carolina Rules of Civil Procedure do "not provide parties in termination actions with procedural rights not explicitly granted by the juvenile code." In re S.D.W. H.E.W., 187 N.C. App. 416, 421, 653 S.E.2d 429, 432 (2007) (citing In re Jurga, 123 N.C. App. 91, 472 S.E.2d 223 (1996)) (holding that parents could not execute a "Declaration of Voluntary Termination of Parental Rights" because the juvenile code did not provide procedures for this type of unilateral declaration); In re Curtis v. Curtis, 104 N.C. App. 625, 410 S.E.2d 917 (1991) (reversing the trial court's grant of summary judgment for the petitioner on the issue of whether the respondent had abused his daughter, because the termination procedures set out in the juvenile code required an adjudication hearing on this issue and did not authorize a summary procedure based on N.C. Gen. Stat. § 1A-1, Rule 56); see also In re D.S.C., 168 N.C. App. 168, 173, 607 S.E.2d 43, 47 (2005) (our case law has "declined to judicially impute procedural rights to parties which are not otherwise authorized by the termination statute"); In re Peirce, 53 N.C. App. 373, 281 S.E.2d 198 (1981) (holding that a respondent in a termination of parental rights proceeding may not file a counterclaim).
The Rules of Civil Procedure will, however, apply to fill procedural gaps where Chapter 7B requires, but does not identify, a specific procedure to be used in termination cases. In re S.D.W. H.E.W., 187 N.C. App. at 421, 653 S.E.2d at 432; see also In re McKinney, 158 N.C. App. 441, 443, 581 S.E.2d 793, 795 (2003) (applying the Rules of Civil Procedure to determine whether the contents of a motion filed to terminate the respondent's parental rights were sufficient to confer subject matter jurisdiction on the trial court); In re Triscari Children, 109 N.C. App. 285, 426 S.E.2d 435 (1993) (holding the requirements for verification established in Chapter 1A, Rule 11(b) should determine whether a petition for the termination of a respondent's parental rights has been properly verified).
Article 11 of Chapter 7B expressly states that the general legislative purpose of the Article "is to provide judicial procedures for terminating the legal relationship between a juvenile and the juvenile's biological or legal parents[.]" N.C. Gen. Stat. § 7B-1100(1) (2007). Article 11 is entirely silent on the amendment of petitions or motions in termination proceedings. The only right of amendment permitted in Chapter 7B proceedings is for the amendment of a petition in juvenile, abuse, neglect or dependency proceedings, and this right is limited to "when the amendment does not change the nature of the conditions upon which the petition is based." N.C. Gen. Stat. § 7B-800 (2007). Accordingly, we will not superimpose a right to amend a petition or motion for termination of parental rights to conform with the evidence presented at the adjudication hearing and the trial court erred by allowing the amendment. See Peirce, 53 N.C. App. at 380, 281 S.E.2d at 203 (holding "the legislative intent was that G.S., Chap. 7A, Art. 24B, [now Article 11 of Chapter 7B] exclusively control the procedure to be followed in the termination of parental rights.").
II. Notice of Grounds for Termination
Since the trial court erred in permitting the amendment of the petitions to conform to the evidence presented at the adjudication hearing, we must further determine whether the petitions were sufficient on their face to support the findings of the trial court. A petition for termination of parental rights must allege "[f]acts that are sufficient to warrant a determination that one or more of the grounds for terminating parental rights [listed in N.C.G.S. § 7B-1111] exist." N.C. Gen. Stat. § 7B-1104(6) (2007). "While there is no requirement that the factual allegations [in a petition for termination of parental rights] be exhaustive or extensive, they must put a party on notice as to what acts, omissions, or conditions are at issue." In re Hardesty, 150 N.C. App. 380, 384, 563 S.E.2d 79, 82 (2002). Where the factual allegations in a petition to terminate parental rights do not refer to a specific statutory ground for termination, the trial court may find any ground for termination under N.C.G.S. § 7B-1111 as long as the factual allegations in the petition give the respondent sufficient notice of the ground. In re A.H., 183 N.C. App. 609, 644 S.E.2d 635 (2007); In re Humphrey, 156 N.C. App. 533, 577 S.E.2d 421 (2003). However, where a respondent lacks notice of a possible ground for termination, it is error for the trial court to conclude such a ground exists. In re C.W. J.W., 182 N.C. App. 214, 228-29, 641 S.E.2d 725, 735 (2007); Hardesty, 150 N.C. App. at 384, 563 S.E.2d at 82.
Here, the petitions clearly alleged that petitioner obtained non-secure custody of both minor children on 10 March 2006. However, at the time the petitions were filed on 30 January 2007 and 5 February 2007, the minor children had not been in foster care or placement outside the home for more than twelve months. While the requisite time period had elapsed before the adjudication hearing on 16 May 2007, this Court has held that
[u]nder N.C.G.S. § 7B-1111(a)(2), the twelve-month period begins when a child is left in foster care or placement outside the home pursuant to a court order, and ends when the motion or petition for termination of parental rights is filed. Where the twelve-month threshold does not expire before the motion or petition is filed, a termination on the basis of N.C.G.S. § 7B-1111(a)(2) cannot be sustained.
In re J.G.B., 177 N.C. App. 375, 383, 628 S.E.2d 450, 456 (2006) (citing In re A.C.F., 176 N.C. App. 520, 527-28, 626 S.E.2d 729, 735 (2006)). Thus, the petitions, as originally filed in this case, 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. Moreover, given our previous holdings and the filing dates of the petitions at issue, respondent was assured that N.C.G.S. § 7B-1111 (a)(2) could not be used as grounds to terminate her parental rights to the minor children absent the filing of amended petitions. The trial court erred in finding grounds existed to terminate respondent's parental rights to the minor children under N.C.G.S. § 7B-1111(a)(2). Since the trial court found no other grounds existed for the termination of respondent's parental rights to her minor children, B.L.H. and Z.L.H., we reverse the order of the trial court.
Reversed.
Judge STEPHENS concurs.
Judge STEELMAN dissents with a separate opinion.