Opinion
No. COA12–357.
2012-11-6
In the Matter of E.S.P. and M.N.P.
Tonya Lacewell Turner, for petitioner-appellee Pender County Department of Social Services. Parker Poe Adams & Bernstein, LLP, by Matthew C. Jordan, for guardian ad litem.
Appeal by respondent-parents from order entered 15 December 2011 by Judge R. Russell Davis in Pender County District Court. Heard in the Court of Appeals 9 October 2012. Tonya Lacewell Turner, for petitioner-appellee Pender County Department of Social Services. Parker Poe Adams & Bernstein, LLP, by Matthew C. Jordan, for guardian ad litem.
Assistant Appellate Defender Annick Lenoir–Peek, for respondent-appellant mother.
Mark L. Hayes, for respondent-appellant father.
CALABRIA, Judge.
I. Background
Respondent-mother and respondent-father (“respondents”) appeal from the trial court's order terminating their parental rights to E.S.P. (“Ethan”) and M.N.P. (“Mona”) (collectively “the children”). We affirm in part and remand for further findings in part.
Pseudonyms are used to protect the juveniles' privacy and for ease of reading.
On 17 April 2008, the Pender County Department of Social Services (“DSS”) filed juvenile petitions alleging that the children were neglected and dependent juveniles. At that time, the trial court ordered DSS to assume custody of the children for placement in nonsecure custody. On 18 September 2008, the trial court adjudicated Ethan and Mona neglected and dependent juveniles.
In the following months, the trial court conducted several review and permanency planning hearings. On 22 May 2009, the trial court ordered DSS to cease reunification efforts with respondents and changed the permanent plan for the children to adoption. Subsequently, DSS sought termination of respondents' parental rights. On 15 July 2010, the trial court entered an order which found that there was insufficient evidence to terminate respondents' parental rights. The court also concluded that termination was not in the best interests of the children.
On 28 January 2011, the trial court entered an order which found that respondents failed to comply with previous court orders. As a result, the trial court ordered DSS to again proceed with termination of respondents' parental rights.
On 24 February 2011, DSS filed a motion to terminate respondent-mother's parental rights on the grounds of neglect, dependency, willfully leaving the children in foster care for more than twelve months without showing reasonable progress, willfully failing to pay a reasonable portion of the cost of care of the children, and willful abandonment. On 28 February 2011, DSS filed a motion to terminate respondent-father's parental rights alleging the same grounds for termination. DSS attempted to serve respondent-father with the motion to terminate, but the motion was returned as undeliverable. Consequently, respondent-father was served with the motion to terminate via publication.
On 28 September 2011, the trial court conducted a second termination hearing. Respondent-father was not present at the hearing, but his attorney and guardian ad litem (“GAL”) participated in the hearing on his behalf. On 15 December 2011, the trial court entered an order terminating respondents' parental rights on the basis of neglect, dependency, and willful abandonment. Respondents separately appeal.
II. Adjudication
A. Respondent-mother's arguments
Respondent-mother argues that the trial court erred in concluding that grounds existed to terminate her parental rights. We disagree.
Respondent-mother first contends the trial court erred in finding and concluding that grounds existed to terminate her parental rights on the basis of neglect. Specifically, respondent-mother argues that the trial court's findings were verbatim recitations of the allegations in the motion to terminate. Pursuant to N.C. Gen.Stat. § 7B–807(b) (2011), an “adjudicatory order shall be in writing and shall contain appropriate findings of fact and conclusions of law.” In accordance with this statute,
the trial court must, through ‘processes of logical reasoning,’ based on the evidentiary facts before it, find the ultimate facts essential to support the conclusions of law. The resulting findings of fact must be sufficiently specific to allow an appellate court to review the decision and test the correctness of the judgment.
In re O.W., 164 N.C.App. 699, 702, 596 S.E.2d 851, 853 (2004) (citations omitted). Importantly, “the trial court's findings must consist of more than a recitation of the allegations” contained in the petition or motion to terminate parental rights. Id.
This Court has repeatedly reversed adjudication orders where the trial court merely repeated allegations from pleadings as its factual findings. In O.W., the trial court listed twenty findings of fact, fifteen of which were “verbatim recitations of the facts stated in DSS's petition for abuse and neglect, some of which [were] unsupported by any evidence.” 164 N.C.App. at 702, 596 S.E.2d at 854. Additionally, several findings of fact were “not even really facts as they simply recite what some unknown source said.” Id. Similarly, in In re Anderson, the trial court's order “contain[ed] only three findings of fact” and “[t]wo merely recite[d] that DSS filed a petition and that service was proper ....“ 151 N.C.App. 94, 97, 564 S.E.2d 599, 602 (2002). The order also stated that “[t]he grounds alleged for terminating parental rights are as follows,” and this Court held that the facts which followed were “mere recitations of allegations .” Id. Finally, in In re S.C.R., the trial court made only three findings, including a finding in which the court “incorporate[d] each of the factual allegations set forth in the Petition as findings of fact as if set forth herein in their entirety.” ––– N.C.App. ––––, ––––, 718 S.E.2d 709, 712 (2011). In each of these cases, this Court reversed the trial court's adjudication and remanded the case for further findings.
Respondent-mother contends that these cases are analogous to the instant case. However, unlike O.W., Anderson, and S.C.R., the findings of fact included in the trial court's order in this case are neither verbatim recitations of all of the allegations in DSS's motion nor an incorporation of those allegations. While some of the trial court's findings correspond closely to allegations in DSS's motion, the order does not include all of DSS's allegations, and some of the findings in the order are merely similar to the allegations in DSS's motion. Most importantly, all of the trial court's findings, even those which are the same as the allegations in DSS's motion, are supported by ample evidence within the record, and respondent-mother does not challenge any of the findings as being unsupported by the evidence.
The trial court's findings reiterate the grounds for neglect which existed at the time of the adjudication hearing in 2008, which the trial court properly admitted and considered as part of its neglect determination. The findings also outline the failures of respondents to make any meaningful effort to remedy the problems which led to the children's removal from their custody including: (1) that both parents failed to maintain consistent therapy appointments, drug screenings, stable housing, and stable employment; (2) that respondent-mother failed to obtain a substance/alcohol abuse assessment; (3) that respondent-mother failed to follow the orders of the court; (4) that neither respondent availed themselves of transportation services arranged by DSS which were meant to enable the parents to attend therapy, obtain alcohol/substance abuse assessments, and comply with drug screening requirements; and (5) that the parents continued to be non-compliant even after the court made visitation and contact with the children contingent upon compliance with court ordered therapy and drug screenings. These findings support a determination that respondent-mother neglected the children. See In re S.C.R., 198 N.C.App. 525, 527–30, 679 S.E.2d 905, 906–08 (2009) (upholding a finding of neglect because the mother failed to complete a substance abuse program, attended only 10 of 29 scheduled visits with the child, and such neglect was likely to continue since the mother was engaged in substance abuse, lacked employment, and failed to obtain stable housing); In re Brim, 139 N.C.App. 733, 734–36, 535 S.E.2d 367, 368–69 (2000) (upholding a finding of neglect where the order listed the various ways in which the respondent-mother failed to alleviate the conditions which brought the child into foster care, including that respondent failed to maintain suitable housing or full-time employment, failed to demonstrate financial responsibility, failed to focus on the child's needs, failed to visit the child on a regular visitation schedule, and failed to utilize concepts from therapy to insure a stable home environment for the child); and In re K.J.L., 206 N.C.App. 530, 531–33, 698 S.E.2d 150, 150–52 (2010)(upholding a finding of neglect where the trial court found that the respondent-mother failed to maintain stable housing, failed to complete parenting classes after being terminated from one program for failure to follow through, failed to maintain gainful employment, was often in arrears on rent, and in the thirteen months preceding the termination hearing, seven summary ejectment actions had been filed against her).
Thus, the findings of fact contained within the trial court's order are sufficiently specific to allow this Court to review the decision to terminate the mother's parental rights and test the correctness of the trial court's judgment. Moreover, the court's findings are sufficient to support the trial court's determination that respondent-mother neglected the children. This argument is overruled. Since we have found that the trial court properly terminated respondent-mother's parental rights on the basis of neglect, it is unnecessary to address her arguments on the remaining grounds found by the trial court. See In re Pierce, 67 N.C.App. 257, 261, 312 S.E.2d 900, 903 (1984). B. Respondent-father's arguments 1. Verification
Respondent-father contends the trial court was deprived of subject matter jurisdiction because DSS did not satisfy the verification requirements of N.C. Gen.Stat. § 7B–1104. We disagree.
The petition or motion to terminate parental rights “shall be verified by the petitioner or movant[.]” N.C. Gen.Stat. § 7B–1104 (2011). “ ‘[A] violation of the verification requirement of N.C.G.S. § 7B–1104 has been held to be a jurisdictional defect per se.’ “ In re C.M.H., 187 N.C.App. 807, 808, 653 S.E.2d 929, 930 (2007) (citation omitted).
In any case in which verification of a pleading shall be required by these rules or by statute, it shall state in substance that the contents of the pleading verified are true to the knowledge of the person making the verification, except as to those matters stated on information and belief, and as to those matters he believes them to be true. Such verification shall be by affidavit of the party[.]
N.C. Gen.Stat. § 1A–1, Rule 11(b) (2011).
In the instant case, the signed and notarized verification by the DSS social worker states the following:
I, Alexandra Boone, being first duly sworn, deposes and says that she is the agent for the Petitioner, Pender County Department of Social Services, and that as such, she has actual knowledge of the facts and circumstances underlying this Petition for Termination of Parental Rights and that she has read the foregoing Petition, and knows the contents thereof, and the same is true of her own knowledge and belief, except as to those matters and things alleged upon information and belief, and as those matters and things, she believes to be true.
Respondent-father identifies numerous factual and typographical errors in the motion to terminate and contends no one, even after only a cursory review of the motion to terminate parental rights, could reasonably believe that the DSS social worker had in fact reviewed the contents of the motion and believed them to be true. Respondent-father contends that, due to the numerous errors in the motion to terminate, DSS's verification should be declared invalid. While we are dismayed by the volume of errors in DSS's motion identified by respondent-father's counsel, we cannot agree with his contention that these errors deprived the trial court of subject matter jurisdiction. Since the verification in the motion to terminate respondent-father's parental rights complies with N.C. Gen.Stat. § 1A–1, Rule 11, the verification requirements of N.C. Gen.Stat. § 7B–1104 were satisfied. This argument is overruled.
2. Personal Jurisdiction
Respondent-father argues the trial court lacked personal jurisdiction over him because he was never personally served with notice of the motion to terminate and DSS failed to exercise due diligence before attempting service by publication. We disagree.
Upon the filing of a motion for termination of parental rights, “the movant shall prepare a notice directed to ... [t]he parents of the juvenile.” N.C. Gen.Stat. § 7B–1106.1(a)(1) (2011). The motion and the notice required by N.C. Gen.Stat. § 7B–1106.1 must be served in accordance with N.C. Gen.Stat. § 1A–1, Rule 4 when more than two years since the date of the original action has elapsed. N.C. Gen.Stat. § 7B–1102 (b)(1) (2011). “[A] party who is entitled to notice of a hearing waives that notice by attending the hearing of the motion and participating in it without objecting to the lack thereof.” In re B.M., 168 N.C.App. 350, 355, 607 S .E.2d 698, 702 (2005).
In the instant case, respondent-father was not present at the termination of parental rights hearing, but his attorney was present. Respondent-father's attorney participated fully in the hearing and did not raise any objection to the lack of proper notice under N.C. Gen.Stat. § 7B–1106.1 at any point during the hearing. Consequently, the trial court had personal jurisdiction over respondent-father. See In re C.S.B., 194 N.C.App. 195, 669 S.E .2d 15 (2008) (holding that although the respondent was not present at the termination of parental rights hearing, the respondent waived any objection to the lack of proper notice under N.C. Gen.Stat. § 7B–1106.1 by failing to raise the issue below and by participating in the termination of parental rights proceedings through counsel). This argument is overruled.
III. Disposition
Both respondents argue that the trial court erred in concluding it was in the children's best interests to terminate their parental rights. Specifically, respondents contend that the trial court failed to make the necessary findings of fact required by N.C. Gen.Stat. § 7B–1110. We agree.
The determination of whether termination is in the best interests of the minor child is governed by N.C. Gen.Stat. § 7B–1110.
In each case, the court shall consider the following criteria and make written findings regarding the following that are relevant:
(1) The age of the juvenile.
(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.
N.C. Gen.Stat. § 7B–1110(a) (2011) (emphasis added). “We review the trial court's decision to terminate parental rights for abuse of discretion.” Anderson, 151 N.C.App. at 98, 564 S.E.2d at 602. The trial court is “subject to reversal for abuse of discretion only upon a showing ... that the challenged actions are manifestly unsupported by reason.” Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980).
.N.C. Gen.Stat. § 7B–1110(a) was amended in 2011. See 2011 N.C. Sess. Laws 295. The amended statute, which explicitly requires the trial court to make written findings of fact on all relevant best interests factors applies to all “actions filed or pending on or after” 1 October 2011. Id. Since the trial court's termination order was not entered until 15 December 2011, the amended statute applies to the instant case.
In the instant case, the trial court made the following findings regarding the best interests of the children:
12. That the best way to obtain a permanent plan for said children is adoption. No bond exists between the children and parents; therefore, it is in the best interest of the minor children that the parental rights of [respondent-mother] and [respondent-father] be terminated.
13. That the best interest of the minor children would be served by terminating the parental rights of the respondent mother and father.
The trial court made no findings which reflected consideration of 7B–1110(a)(2), “the likelihood of adoption of the juvenile.” However, evidence presented at the termination hearing demonstrated that the children's likelihood of adoption would be relevant to the trial court's best interests determination. There was testimony at the termination hearing that neither of the children had found permanent placements at the time of the hearing because they each had significant mental/emotional health needs which required them to remain in therapeutic foster care for an unknown amount of time. However, both the children's GAL and social worker believed that the children were very likely to be adopted in the future. Thus, while the question of the adoptability of the children was raised during the termination hearing, the trial court did not make any written findings regarding this factor. As a result, the trial court's order does not comply with the requirements of N.C. Gen.Stat. § 7B–1110. Since the record contains evidence from which the court could make findings as to this factor, we remand for entry of appropriate findings pursuant to N.C. Gen.Stat. § 7B–1110(a). See In re E.M., 202 N.C.App. 761, 765, 692 S.E.2d 629, 631 (2010).
IV. Conclusion
The trial court had jurisdiction over respondents and correctly concluded that grounds existed to terminate respondents' respective parental rights. Consequently, the adjudication portion of the trial court's order is affirmed. However, the trial court failed to make findings which were required by N.C. Gen.Stat. § 7B–1110(a) in determining whether termination of respondents' parental rights was in the best interests of the children. Accordingly, we remand the disposition portion of the trial court's order for further findings as required by N.C. Gen.Stat. § 7B–1110(a).
Affirmed in part and remanded in part.
Report per Rule 30(e).