Opinion
NO. COA11-114 No. 02 JT 59-60 No. 08 JT 38-39
08-16-2011
IN THE MATTER OF: D.D.D., D.D.D., K.D.D., and K.A.D.
R. Scott Lindsay, for petitioner-appellee Cherokee County Department of Social Services. Womble Carlyle Sandridge & Rice, PLLC, by Theresa M. Sprain, for guardian ad litem. Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson, for respondent-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Cherokee County
Appeal by respondent from orders entered 27 October 2010 by Judge Richard K. Walker in Cherokee County District Court. Heard in the Court of Appeals 1 August 2011.
R. Scott Lindsay, for petitioner-appellee Cherokee County
Department of Social Services.
Womble Carlyle Sandridge & Rice, PLLC, by Theresa M.
Sprain, for guardian ad litem.
Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson,
for respondent-appellant.
MARTIN, Chief Judge.
On 31 August 2008, Cherokee County Department of Social Services (the "petitioner") received a report alleging abandonment and sexual abuse of minor children by their parents. The petitioner obtained non-secure custody and filed juvenile petitions alleging neglect and abuse. At the 13 November 2008 adjudication hearing, the trial court adjudicated all four children abused and neglected.
Respondent pled guilty to six counts of taking indecent liberties with a child on 15 June 2009. A permanency planning review hearing was held on 27 and 28 July 2009. At this hearing, the trial court relieved the petitioner of any further reunification efforts with respondent. The permanent plan continued to be reunification with the mother until the 15 October 2009 review hearing, at which time the trial court changed the plan and ordered the petitioner to pursue termination of both parents' rights to the children.
On 15 December 2009, the petitioner filed a petition to terminate parental rights, alleging the following grounds as to respondent: (1) neglect, N.C. Gen. Stat. § 7B-1111(a)(1) (2009); (2) failure to make reasonable progress, N.C. Gen. Stat. § 7B-1111(a)(2); (3) willful abandonment, N.C. Gen. Stat. § 7B-1111(a)(7); and (4) sexual assault upon a juvenile in the home resulting in serious bodily injury, N.C. Gen. Stat. § 7B-1111(a)(8).
The adjudication portion of the termination hearing was held on 26 July 2010. The trial court determined that the petitioner presented clear and convincing evidence to support the grounds of neglect, failure to make reasonable progress, failure to pay the cost of care, and that respondent committed a sexual assault upon one or more of the minor children. The court also determined, however, that respondent had not willfully abandoned the minor children.
The disposition portion of the hearing was held on 27 July 2010. The trial court concluded that termination of respondent's parental rights was in the best interests of the children. The court entered separate adjudication and disposition orders for each child. From the orders entered, respondent appeals.
As a preliminary matter, we note that respondent filed a petition for writ of certiorari in the alternative to his appeal due to lack of clarity in the record regarding whether he properly filed notice of appeal to each of the eight separate orders. We agree the notices of appeal do not clearly refer to both the adjudication and disposition orders, but merely to the "Order Terminating Parental Rights." It is clear to us, however, that respondent intended to appeal from all of the orders entered by the trial court relating to the termination proceedings. Given the serious issues involved in this case, to the extent respondent failed to give proper notice of appeal as to each and every one of the termination orders, we grant certiorari to review all eight.
Upon review of an order terminating parental rights, this Court must determine (1) whether the trial court's findings of fact are supported by clear, cogent and convincing evidence, and (2) whether the court's findings of fact support its conclusions of law that one or more statutory grounds for termination exist. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001); see also N.C. Gen. Stat. § 7B-1111 (2009). "Our review of the trial court's findings of fact is limited to whether there is competent evidence to support the findings; however, the trial court's conclusions of law are reviewable de novo." In re Pope, 144 N.C. App. 32, 40, 547 S.E.2d 153, 158, aff'd, 354 N.C. 359, 554 S.E.2d 644 (2001). Once a trial court has determined at the adjudication phase that at least one ground for termination exists, the case moves to the disposition phase where the trial court decides whether a termination of parental rights is in the best interest of the child. N.C. Gen. Stat. § 7B-1110(a) (2009); In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001).
On 26 July 2010, the adjudication portion of the termination hearing was held. Among the numerous findings of fact made by the trial court, the following are the most relevant to the grounds pertaining to respondent:
25. That [petitioner] received a Child Protective Services report on August 31, 2008 which alleged that [respondents] had left their two younger children with a caregiver and they had not returned to pick them up; that the caregiver was no longer able to provide for the children's care and wanted DSS to pick them up.
26. That in the Child Protective Services report received on August 31, 2008, the caregiver also related that a few days earlier she had been in the [] home and had seen [respondent] in the bathtub with his two daughters, [D.D.D.] and [K.D.D.]; that [K.D.D.] had earlier reported to the caregiver that she was mad at her daddy because he had played with her "coochie"; that the caregiver further stated that she had spoken to the children's mother, [], about this and the children's mother had indicated she was aware of it; that [K.D.D.] later disclosed to DSS staff that her "daddy had touched her coochie with his mouth and his head[.]"
30. That forensic interviews were completed for [D.D.D.] and her female sibling [K.D.D.], with positive findings for [K.D.D.].
31. That [respondent] was charged criminally with six (6) counts of Indecent Liberties with a Child and was incarcerated in the
Cherokee County Detention Center on November 3, 2008.
32. That [D.D.D.] initially would not discuss possible sexual abuse with the interviewer; that in January, 2009 [D.D.D.] was interviewed by Detective Jerry Crisp of the Cherokee County Sheriff's Department at which time she made disclosures of sexual abuse by her father, [respondent], which lead to additional charges of first degree sexual abuse of a child being filed against [respondent].
33. That on January 5, 2009, [respondent] was indicted by a grand jury in Cherokee County, North Carolina with twelve (12) counts of taking indecent liberties with a child in violation of North Carolina General Statutes § 14-201.1; that the children named as victims in the aforementioned indictments were [D.D.D.], [K.D.D.], and [D.D.D.] all of whom are the children of [respondent].
34. That on June 16, 2009, [respondent], who was represented by counsel, pleaded guilty to six (6) felony counts of Indecent Liberties with a Child in the Superior Court of Cherokee County, North Carolina.
38. That on June 16, 2009, after the Court accepted [respondent]'s plea to six (6) felony counts of Indecent Liberties with a Child, the Court sentenced [respondent] to two (2) consecutive terms of imprisonment of not less than 21 months and not more than 26 months.
39. That as of the date of this hearing, [respondent] remains incarcerated in the North Carolina Department of Corrections in Avery-Mitchell Correctional Center in Spruce
Pine, North Carolina.
52. That a Family Team Meeting and a Permanency Planning Meeting was held on October 20, 2008 and neither [respondent nor the mother] attended; that when asked why this meeting was missed, [respondent's and the mother's] response was: "I forgot."
55. That [respondent] was incarcerated on November 3, 2008 having been charge[d] with several felony counts of taking indecent liberties with a child; that [respondent's] Release Order required him to have no contact with any of his children, including [D.D.D.].
56. That [respondent] was unable to post a bond on the felony charges filed against him, and he remained incarcerated in the Cherokee County Detention Center from his arrest on November 3, 2008 until he was transferred to the North Carolina Department of Corrections on July 1, 2009; that because of [respondent's] incarceration and the "no contact" requirement of his Release Order, no case plan could be developed for [respondent].
57. That [respondent] was incarcerated on January 9, 2009 on twelve (12) felony counts of Indecent Liberties with a Minor and did not attend the Permanency Planning Meeting which was held on that date.
62. That [respondent] was incarcerated on July 9, 2009 on twelve (12) felony counts of Indecent Liberties with a Minor and did not attend the Permanency Planning Meeting which was held on that date.
77. That [respondent] did not have work release while incarcerated in the Cherokee County Detention Center; that he earns a minimal hourly wage for any work he performs while incarcerated in the North Carolina Department of Corrections; that he has also received gifts of money from relatives and friends since he has been incarcerated in the North Carolina Department of Corrections; that any money earned by [respondent] or gifts of money received by him while he has been incarcerated in the North Carolina Department of Corrections has been used for his personal needs; that he has provided no support or gifts to his children while he has been incarcerated.
78. That while [respondent] has been incarcerated in the Cherokee County Detention Center and in the North Carolina Department of Corrections he has not contacted [DSS] to inquire about his children or how they were progressing.
Respondent challenges each of the four grounds for termination as being unsupported by the evidence and the findings of fact. We address each ground in turn.
I.
A trial court may terminate parental rights upon finding that a parent has neglected the minor children. N.C. Gen. Stat. § 7B-1111(a)(1). A child is neglected if he or she "does not receive proper care, supervision, or discipline from the juvenile's parent, . . .; or . . . has been abandoned; . . . or . . . lives in an environment injurious to the juvenile's welfare." N.C. Gen. Stat. § 7B-101(15) (2009). In determining neglect, the court must consider "the fitness of the parent to care for the child at the time of the termination proceeding." In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984) (italics in original). Although evidence of past neglect is admissible, "[t]he trial court must also consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect." Id. (citation omitted). Therefore, a trial court must find either that neglect existed at the time of the termination hearing or that there was a reasonable likelihood of repetition of neglect if the child was returned to the parents. Id. at 716, 319 S.E.2d at 232.
Respondent contends the court made no findings that the children continued to be neglected by respondent at the time of the hearing or that a repetition of neglect is likely in the future. Respondent further argues that several of the court's findings of fact are unsupported by the evidence, for example, that respondent was charged with and indicted on twelve counts of taking indecent liberties, even though the evidence presented was that he was indicted on only six counts. Respondent asserts that his incarceration alone cannot support a conclusion of neglect, nor can the fact that he had no contact with the children, since he was under court order to have no contact with them. He also contends the finding that he had not provided any support is not a basis for neglect where there was no evidence or finding that he had the ability to pay a sum greater than zero. Finally, respondent points out that the court specifically determined he had not abandoned the minor children, so that abandonment cannot therefore be a basis for finding neglect.
While respondent is correct that the findings referring to twelve counts of indecent liberties are inaccurate, we conclude the error is not determinative of the ultimate issue. We agree, however, that the trial court failed to make any findings of fact or conclusions of law regarding the likelihood of repetition of neglect should the children be returned to respondent's care. The trial court cannot rely solely on the past adjudication of neglect. The findings regarding lack of contact and support by respondent are insufficient to support neglect where there are no findings regarding the likelihood of repetition of neglect. Therefore, the trial court's findings do not support the court's conclusion that grounds exist to terminate based on neglect, and the court erred in ordering termination of respondent's parental rights on this basis.
II.
Parental rights may be terminated when "[t]he parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing 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) (2009). Willfulness does not imply fault on the part of the parent, but may be "'established when the respondent had the ability to show reasonable progress, but was unwilling to make the effort.'" In re O.C. & O.B., 171 N.C. App. 457, 465, 615 S.E.2d 391, 396 (quoting In re McMillon, 143 N.C. App. 402, 410, 546 S.E.2d 169, 175, disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001)), disc. review denied, 360 N.C. 64, 623 S.E.2d 587 (2005). "[I]ncarceration, standing alone, neither precludes nor requires finding the respondent willfully left a child in foster care." In re Harris, 87 N.C. App. 179, 184, 360 S.E.2d 485, 488 (1987).
Respondent argues the trial court failed to make any findings about the conditions he failed to meet or that he failed to address the conditions that led to the children's removal. We agree.
The court specifically found as fact that due to respondent's incarceration and a "no contact" order put in place by the court, no case plan was developed for respondent. There are no findings at all regarding respondent's attempt or lack of attempt to correct the conditions which led to the removal of the children from the home, let alone any findings that would support a determination that respondent's failure to correct the conditions was willful. Therefore, the court's conclusion that grounds exist to terminate based on failure to make reasonable progress is unsupported and in error.
III.
Respondent argues the trial court's findings of fact are inadequate to support the ground of failure to pay cost of care. While respondent's arguments on the merits are persuasive, we conclude the trial court erred in finding this ground for termination because it was not alleged in the petitions to terminate respondent's parental rights.
Although DSS alleged the ground of failure to pay a reasonable cost of care for the children as to the children's mother, the petitions do not allege the same ground for respondent father. A ground for termination must be alleged in the motion or petition to terminate; if not, "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 B.L.H., 190 N.C. App. 142, 147, 660 S.E.2d 255, 258, aff'd per curiam, 362 N.C. 674, 669 S.E.2d 320 (2008). Since the ground of failure to pay cost of care was not alleged in the petitions to terminate respondent's parental rights, the trial court erred in basing termination on this ground.
IV.
A parent's rights to a child may be terminated where the parent "has committed a felony assault that results in serious bodily injury to the child, another child of the parent, or other child residing in the home[.] " N.C. Gen. Stat. § 7B-1111(a)(8) (2009). The burden is on the petitioner to either prove the elements of the offense or to show that "a court of competent jurisdiction has convicted the parent of the offense, whether or not the conviction was by way of a jury verdict or any kind of plea." Id. Respondent contends the trial court erred in finding the existence of this ground where no evidence was presented and no findings were made that any of the children were feloniously assaulted or that they suffered a serious bodily injury.
The trial court found as fact that respondent pled guilty to six counts of taking indecent liberties with a child. No other findings were made regarding the nature of the crimes apart from the initial allegation made by one of the children which was one of the bases for the filing of the juvenile petition. Pursuant to N.C. Gen. Stat. § 14-202.1, the offense of taking indecent liberties with a child requires proof that "(1) the defendant was at least 16 years of age, (2) he was five years older than his victim, (3) he willfully took or attempted to take an indecent liberty with the victim, (4) the victim was under 16 years of age at the time the alleged act or attempted act occurred, and (5) the action taken by the defendant was for the purpose of arousing or gratifying sexual desire." State v. Rhodes, 321 N.C. 102, 104-05, 361 S.E.2d 578, 580 (1987). In order to find a person guilty of this offense, there is no requirement to prove that a touching occurred. State v. Hicks, 79 N.C. App. 599, 603, 339 S.E.2d 806, 809 (1986).
Here, the fact that respondent pled guilty to taking indecent liberties with a child, without more, is insufficient to support a conclusion that respondent committed a felony assault resulting in serious bodily injury pursuant to N.C. Gen. Stat. § 7B-1111(a)(8). Further, DSS presented no evidence that the children were physically assaulted or that any assault resulted in serious bodily injury. Therefore, the trial court erred in basing termination of parental rights on this ground.
Since we conclude that none of the grounds alleged by DSS are supported by the findings of fact, we reverse the adjudication orders and remand the matter to the trial court for further findings of fact. The trial court shall determine whether sufficient evidence was already presented from which adequate findings may be made, or whether additional evidence is required.
V.
Respondent next contends the trial court abused its discretion in determining that termination of his parental rights is in the best interests of the children. Although we have determined that the adjudication orders cannot stand, we address this issue in the interest of avoiding similar error on remand. We agree with respondent that the court's determination of best interests is not supported by its findings of fact.
The Juvenile Code provides that the trial court is required to consider these factors when determining whether termination is in the best interests of the minor children:
(1) The age of the juvenile.N.C. Gen. Stat. § 7B-1110(a) (2009). The determination by the trial court that termination is in the best interests of the child will not be overturned absent an abuse of discretion. In re Tyson, 76 N.C. App. 411, 419, 333 S.E.2d 554, 559 (1985).
(2) The likelihood of adoption of the juvenile.
(3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.
(4) The bond between the juvenile and the parent.
(5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.
(6) Any relevant consideration.
The only finding of fact that directly addresses the children's best interests in the disposition orders for each child reads, "[t]hat the child is in need of a permanent plan of care at the earliest possible age, and this can only be accomplished by terminating the relationship between the child and [his or her] father and by terminating the parental rights of the child's father, [respondent.]" This finding is wholly inadequate to show the trial court considered the statutory factors contained in section 7B-1110, and the disposition orders must therefore be reversed and remanded for further findings of fact. Our review of the transcript reveals that the trial court did consider several of the factors and made oral findings of fact demonstrating its consideration of these factors, but the written disposition orders fail to reflect the oral findings. We reverse the disposition orders as written and remand for further findings of fact.
Reversed and remanded.
Judges ERVIN and THIGPEN concur.
Report per Rule 30(e).