Opinion
No. COA10-214
Filed 6 July 2010 This case not for publication
Appeal by respondent from order entered 14 September 2009 by Judge Thomas G. Taylor in Gaston County District Court. Heard in the Court of Appeals 7 June 2010.
Thomas B. Kakassy, for petitioner-appellee. Pamela Newell, for Guardian ad Litem-appellee. Michael E. Casterline, for respondent-appellant.
Gaston County Nos. 05 JT 157, 05 JT 158.
Respondent is the birth mother of the two children, A.D.T. and D.R.T., III, ("the children") involved in this appeal. On 14 April 2005, the petitioner Gaston County Department of Social Services ("petitioner") filed a juvenile petition alleging that the children were neglected. On 31 May 2005 the court adjudicated the children to be neglected and awarded custody of the children to petitioner. On 2 June 2008, petitioner filed a petition to terminate respondent-mother's parental rights on the grounds of: (1) neglect; (2) willfully leaving the children in foster care for over twelve months without showing reasonable progress in correcting the conditions which led to the removal of the children; and (3) failure to pay support. On 7 November 2008, the court filed an order terminating respondent-mother's parental rights on the sole ground that she abandoned the children. Respondent-mother filed notice of appeal from this order on 3 December 2008. This Court, in an unpublished opinion filed 16 June 2009, ruled that the trial court erroneously terminated respondent-mother's parental rights on a ground which was not alleged in the petition. In re A.D.T. D.R.T., III, ___ N.C. App. ___, 680 S.E.2d 271 (2009) (unpublished). This Court reversed the order terminating respondent-mother's parental rights and remanded the case to the Gaston County District Court "for further proceedings not inconsistent with [the] opinion." Id.
On 14 September 2009 the Gaston County District Court conducted further proceedings. At the call of the case for hearing at 9:32 a.m., the court identified the parties and attorneys that were present and stated:
It is my intent not to take any further evidence. I believe that the adjudicatory findings that I made in the original matter, most particularly that — the children were adjudicated neglected the juveniles were adjudicated neglected and that that neglect was continuing, forms a sufficient basis for me to then continue to whether or not it's in their best interests for the respondent mother's rights to be terminated, and my opinion about that is unchanged as well; however, I'll be glad to hear from either side at this point about their position with regard to that.
It's my intent, therefore, to amend my order to reflect an additional legal basis for termination in that there is — that they were adjudicated neglected and the neglect was ongoing and continuing and that it is in their best interest that the mother's rights be terminated; but, I'll hear from you if you wish to be heard.
Respondent-mother's counsel replied that he did not think there had been a "continuous course of neglect" by his client, and offered to present testimony that his client "still has the same house, that she is drug and alcohol free as the gentleman she lives with is drug and alcohol free." After hearing counsel's statement, the court stated that those facts would not change the basis of the original order. The court also indicated that it would be filing the order that day and giving the parties an opportunity to make objections to it. The court filed its order at 9:42 a.m. that day terminating respondent-mother's parental rights pursuant to N.C.G.S. § 7B-1111(a)(1) on the ground of neglect. Respondent-mother appealed.
Respondent-mother contends the trial court erred by failing to strictly follow this Court's mandate when it terminated her parental rights on the ground of neglect. She argues the doctrine of law of the case precluded the court from terminating her parental rights on the ground of neglect after the court had not found the existence of that ground in the prior order.
Respondent-mother calls our attention to In re S.R.G., N.C. App., 684 S.E.2d 902 (2009), disc. review and cert. denied, 363 N.C. 804, 691 S.E.2d 19 (2010), a case having facts remarkably similar to the case at bar. Indeed, the same trial judge and the same department of social services are involved in both cases. As in the case at bar, the trial judge in S.R.G. originally terminated parental rights on the single ground of abandonment. Likewise, on appeal, this Court reversed the order and remanded the matter for further proceedings by the trial court. On remand, the trial judge conducted a hearing that lasted only seven minutes. Like the case at bar, the trial judge did not hear any new evidence. The trial judge indicated that another evidentiary hearing was unnecessary because he was finding that the child was neglected and there was a likelihood of continuing neglect. The trial judge accordingly entered an order terminating parental rights on the ground of neglect, as alleged in the original petition.
The mother appealed, contending that the trial court failed to follow this Court's mandate. This Court declared that when a petition alleges multiple grounds, and the trial court finds the existence of one ground, "the consequence of such an adjudication is the nonexistence of the other two grounds alleged by DSS, which were neglect and willful failure to pay a reasonable portion of the cost of care for the juvenile." Id. at___, 684 S.E.2d at 905. Applying the doctrine of the law of the case, we stated "the trial court's original order foreclosed the possibility of the existence of neglect or willful failure to pay a reasonable portion of the cost of care as grounds for termination." Id. We accordingly reversed the trial court's order. We advised that in order to terminate the mother's rights on the ground of neglect, a new petition had to be filed. Id.
We are unable to distinguish the case at bar from In re S.R.G. We conclude that it is controlling precedent by which we are bound. See In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). We therefore must reverse the court's order.
Reversed.
Judges HUNTER and BEASLEY concur.
Report per Rule 30(e).