Opinion
No. COA09-209.
Filed June 16, 2009.
Gaston County Nos. 05 JT 157, 05 JT 158.
Appeal by respondent from order entered 7 November 2008 by Judge Thomas G. Taylor in Gaston County District Court. Heard in the Court of Appeals 25 May 2009.
Thomas B. Kakassy for petitioner-appellee. Guardian ad Litem Appellate Counsel Pamela Newell Williams, for guardian ad litem-appellee. Michael E. Casterline for respondent-appellant.
Respondent, Laura Jane P. (Respondent Mother), is the mother of the two children, A.D.T. and D.R.T., III, (hereinafter "the children") involved in this appeal. On 14 April 2005, the Gaston County Department of Social Services (GCDSS) filed a juvenile petition alleging that the children were neglected. On 31 May 2005, the court entered an adjudication order finding the children to be neglected and awarding custody of Anna and Don to the GCDSS. On 2 June 2008, the GCDSS filed a petition to terminate Respondent Mother's parental rights in Anna and Don. On 7 November 2008, the trial court entered an order finding that grounds existed for the termination of Respondent Mother's parental rights on the following grounds:
A.D.T. will be referred to in the opinion as Anna and D.R.T., III, will be referred to in this opinion as Don for ease of reading and in order to protect the privacy of the two juveniles.
[Respondent Mother] willfully abandoned the Juveniles [Anna] and [Don] for at least six months immediately next [preceding] filing the Petition herein, in that juveniles ha[d] been in the custody of the [GCDSS] since April 14, 2005, and that during that time Respondent [Mother] has willfully and unreasonably failed to meaningfully cooperate with efforts of reunification by failing to demonstrate, for any significant period, that she is willing to follow the treatment protocols and recommendations of her Court Sanctioned Case Plans.
After making this determination, the trial court concluded, in the exercise of its discretion, that Respondent Mother's parental rights in Anna and Don should be terminated. Respondent Mother noted an appeal to this Court from the trial court's termination order on 3 December 2008.
All three parties to the proceedings on appeal agreed in their briefs that the trial court's language was best understood as a determination that Respondent Mother's parental rights were subject to termination for abandonment as authorized by N.C. Gen. Stat. § 7B-1111 (a)(7).
On appeal, Respondent-Mother challenges the trial court's order terminating her parental rights on the grounds of abandonment for two reasons: (1) the GCDSS failed to allege that Respondent Mother's parental rights were subject to termination on the grounds of abandonment and (2), even if abandonment was adequately alleged in the petition, the trial court's findings of fact do not support the court's conclusion that Respondent Mother had abandoned Annaand Don. After careful consideration of the record and the parties' briefs, we agree that the trial court erred in terminating Respondent Mother's parental rights in Anna and Don on abandonment grounds given the failure of GCDSS to adequately allege facts supporting the termination of Respondent Mother's parental rights in Anna and Don pursuant to N.C. Gen. Stat. § 7B-1111 (a)(7) and given the absence of adequate support in the trial court's findings of fact for a determination that Respondent Mother had abandoned Anna and Don.
A petition seeking the entry of an order terminating a respondent's parental rights is required to allege "[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). "While there is no requirement that the factual allegations 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). This Court has held that a petition seeking the entry of an order terminating parental rights need not refer to or cite a specific statutory provision as long as the factual allegations contained in the petition are sufficient to put the respondent on notice that his or her parental rights are subject to termination on the basis of the statutory ground for termination in question. In re A.H., 183 N.C. App. 609, 615, 644 S.E.2d 635, 639 (2007). This Court has also held that, when a petition does not allege sufficient facts to put the respondent on notice that a particular ground for termination, such as abandonment, will be at issue during the termination hearing, an order terminating parental rights solely on that ground is subject to reversal on appeal. In re C.W., 182 N.C. App. 214, 228-9, 641 S.E.2d 725, 735 (2007).
A parent's parental rights in a particular juvenile are subject to termination in the event that the trial court finds that
[t]he parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion, or the parent has voluntarily abandoned an infant pursuant to G.S. 7B-500 for at least 60 consecutive days immediately preceding the filing of the petition or motion.
N.C. Gen. Stat. § 7B-1111 (a)(7). "Abandonment implies conduct on the part of the parent which manifests a willful determination to forego all parental duties and relinquish all parental claims to the child." In re Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986). This Court had defined abandonment as "wilful neglect and refusal to perform the natural and legal obligations of parental care and support. . . . [I]f a parent withholds his presence, his love, his care, the opportunity to display filial affection, and wilfully neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child." In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 427 (2003) (quoting Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962)).
The petition filed by the GCDSS in this case alleged three specific statutory grounds for termination of Respondent Mother's parental rights: (1) that Respondent Mother had neglected the juveniles; (2) that Respondent Mother had willfully, and not solely due to poverty, left the juveniles in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress had been made in correcting the conditions which led to their removal from the home; and (3) that Respondent Mother had willfully failed to pay, for a period of six months next preceding the filing of the petition, a reasonable portion of the cost of care for the juveniles although she was physically and financially able to do so. As factual support for these allegations, the GCDSS quoted from the original order adjudicating the children as neglected. The petition also contained allegations about Respondent Mother's participation in mediation; compliance with reunification plans; progress in correcting the conditions that led to the removal of Anna and Don from the home; instability in housing and employment; inability to remain sober and drug -free; lack of transportation causing Respondent Mother to miss certain school meetings and visitation sessions; failure to demonstrate the ability to meet Anna and Don's basic needs for food, shelter, clothing, education and health care; and failure to pay anything toward the cost of care for Anna and Don since 11 February 2008.
N.C. Gen. Stat. § 7B-1111 (a)(2) permits termination of a parent's parental rights in the event that "[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." This ground for termination is separate and distinct from that set out in N.C. Gen. Stat. § 7B-1111 (a)(7), which is quoted in the text, in that termination pursuant to N.C. Gen. Stat. § 7B-1111 (a)(7) requires proof of willful abandonment for a period of six consecutive months while termination pursuant to N.C. Gen. Stat. § 7B-1111 (a)(2) requires proof that the juvenile has been willfully left in foster care for twelve months without reasonable progress toward rectification of the conditions that lead to the removal of the juvenile from the home by the parent.
After careful consideration, we conclude that these allegations were simply not sufficient to place Respondent Mother on notice that termination of her parental rights on the ground of abandonment as authorized by N.C. Gen. Stat. § 7B-1111 (a)(7) would be an issue at the hearing held before the trial court. Although both the GCDSS and the Guardian ad Litem point out numerous instances in which less than admirable conduct on the part of Respondent Mother is detailed in the petition, none of these allegations assert facts tending to show that Respondent Mother willfully determined to give up her parental role, relinquish her parental claims, or otherwise abandon the children.
Moreover, even if the petition did allege sufficient facts to adequately place Respondent Mother on notice that the GCDSS sought the termination of her parental rights in Anna and Don on the basis of abandonment pursuant to N.C. Gen. Stat. § 7B-1111 (a)(7), we conclude the trial court's findings of fact are not sufficient to support the conclusion that Respondent Mother willfully abandoned Anna and Don. The trial court's findings of fact focus upon Respondent Mother's problems with alcohol and substance abuse, her unstable living and employment situation, and her inability to successfully comply with her case plans. The following findings of fact reflect, in a reasonably representative manner, the factual basis upon which the trial court concluded that Respondent Mother's parental rights were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111 (a)(7):
66. Since the Juveniles' placement with the Petitioner Respondent Mother has only once complied with her Court-Sanctioned Case Plans in a manner which allowed her to exercise continuous unsupervised custody, and during that time was admittedly in violation of the Case Plan by continually abusing alcohol.
. . . .
68. Although the Respondent Mother has, according to her testimony, successfully stopped abusing controlled substances during the ten months next [preceding] this hearing, she has, during that time, materially failed to make consistent reasonable progress in any other goal of her Case Plan including, but not limited to: finding and keeping gainful employment, establishing a safe and independent domicile for herself and the children, and fully participating in all recommended counseling for herself and the children.
69. Throughout the Neglect Action Respondent Mother has given mutable, conflicting and inconsistent accounts of the frequency and type of drugs she was using, and the persons she was associating with, rendering meaningless the repeated efforts of her Counselors to assist her in recovery and placement with her children.
70. Throughout the Neglect Action, Respondent Mother unreasonably failed to follow through with treatment recommendations, demonstrating a voluntary disregard for the seriousness of her problem and its consequent [e]ffect on her ability to have a safe, normal, and healthy relationship with her children.
This Court recently concluded that similar findings focusing on a mother's failure to comply with her case plan and address her substance abuse problems did not suffice to support termination of the mother's parental rights on the basis of abandonment. In reaching that conclusion, we stated:
A judicial determination that a parent willfully abandoned her child, particularly when we are considering a relatively short six month period, needs to show more than a failure of the parent to live up to her obligations as a parent in an appropriate fashion; the findings must clearly show that the parent's actions are wholly inconsistent with a desire to maintain custody of the child. (citation omitted.)
Respondent's conduct of continuing substance abuse and her failure to follow through with her case plan represents poor parenting, at the least, and may be grounds for termination of her parental rights pursuant to N.C. Gen. Stat. § 7B-1111 (a)(2). However, her actions during the relevant six month period do not demonstrate a purposeful, deliberative and manifest willful determination to forego all parental duties and relinquish all parental claims to S.R.G. pursuant to N.C. Gen. Stat. § 7B-1111 (a)(7). Therefore, we hold the trial court erred in the adjudication portion of the termination proceeding by finding grounds to terminate Respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111 (a)(7). We thus reverse and remand to the trial court for further action consistent with this opinion.
In re S.R.G., N.C. App., 671 S.E.2d 47, 53 (2009). Similarly, we conclude that the trial court's findings of fact in the present case do not show conduct by Respondent Mother which manifests a willful determination to forego all parental duties and relinquish all parental claims to the child. Thus, the trial court's findings of fact simply do not suffice to support its conclusion that Respondent Mother's parental rights are subject to termination for abandonment pursuant to N.C. Gen. Stat. § 7B-1111 (a)(7). We therefore reverse the order terminating Respondent Mother's parental rights in Anna and Don and remand this case to the Gaston County District Court for further proceedings not inconsistent with this opinion.
REVERSED and REMANDED.
Judges Robert N. Hunter, Jr., and Beasley concur.
Report per Rule 30(e).