Opinion
No. COA11–1261.
2012-05-1
In the Matter of S.L.B. and M.I.B.
Nicholas S. Ackerman, for Petitioner–Appellee. Michael E. Casterline, for Respondent–Appellant Mother.
Appeal by Respondent–Mother from orders entered 8 July 2011 by Judge Laurie L. Hutchins in District Court, Forsyth County. Heard in the Court of Appeals 3 April 2012. Nicholas S. Ackerman, for Petitioner–Appellee. Michael E. Casterline, for Respondent–Appellant Mother.
McGEE, Judge.
Respondent appeals from the orders terminating her parental rights to S.L.B. and M.I.B. (together, the juveniles). Respondent contends that the petitions to terminate her parental rights failed to allege sufficient facts to put her on notice of the alleged acts, omissions, or conditions that supported termination, and that the trial court's findings of fact did not support its conclusion that two grounds existed to terminate her parental rights. We disagree with Respondent's contention that the trial court erred in refusing to dismiss the petitions, but we agree that the trial court's findings are insufficient to support its conclusions.
The Forsyth County Department of Social Services (DSS) filed a petition on 10 April 2000 alleging that S.L.B. was neglected. DSS filed a petition on 4 May 2000 alleging that M.I.B. was neglected. In an order dated 7 July 2000, Judge Roland H. Hayes adjudicated both juveniles neglected. In an order dated 7 November 2000, Judge Lisa V. Menefee appointed maternal relatives D.R. and A.R. (Petitioners) as the juveniles' guardians. For the next ten years, Petitioners served as the juveniles' guardians. On 21 October 2010, D.R. filed a motion to review the guardianship so that Petitioners could adopt the juveniles. Judge Denise S. Hartsfield entered an order on 16 December 2010 dismissing D.R.'s motion to review.
Petitioners filed petitions on 20 December 2010 to terminate Respondent's parental rights to both juveniles. Each petition alleged substantially similar grounds to terminate Respondent's parental rights, including allegations that Respondent's parental rights should be terminated pursuant to N.C. Gen.Stat. § 7B–1111(a)(3) and (7) (2011) . N.C.G.S. § 7B–1111(a)(3) allows termination of parental rights when:
In the petitions, Petitioners incorrectly listed the statutory section as 7a–1111 instead of 7B–1111, and the trial court also made this same mistake in its orders terminating Respondent's parental rights.
The juvenile has been placed in the custody of a county department of social services, a licensed child-placing agency, a child-caring institution, or a foster home, and the parent, for a continuous period of six months next preceding the filing of the petition or motion, has willfully failed for such period to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so.
N.C.G.S. § 7B–1111(a)(7) allows termination of parental rights when:
The 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.
After a termination hearing, the trial court entered orders on 8 July 2011 terminating Respondent's parental rights. The trial court found grounds to terminate Respondent's parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(3) and (7) and concluded that it was in the juveniles' best interests to terminate Respondent's parental rights. Respondent appeals.
Respondent's first argument on appeal is that the petitions to terminate her parental rights contained insufficient factual allegations to provide notice of the grounds for termination. Respondent failed to preserve this issue for appellate review.
Specifically, Respondent argues that the petitions should have been dismissed because Petitioners failed to allege sufficient facts in support of the statutory grounds for termination in violation of N.C. Gen.Stat. § 7B–1104(6).
The Juvenile Code requires that:
The petition, or motion pursuant to G.S. 7B–1102, shall be verified by the petitioner or movant ... and shall set forth such of the following facts as are known; and with respect to the facts which are unknown the petitioner or movant shall so state:
....
(6) Facts 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) (2011).
In her answers, Respondent prayed: “That the [trial court] dismiss [the petitions].” However, Respondent did not specifically contend that the petitions violated N.C.G.S. § 7B–1104(6), and Respondent made no motion to dismiss based upon an allegation of any such violation. While Respondent filed a general motion to dismiss, Respondent should have made a specific motion to dismiss based upon Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, but did not. Further, Respondent never argued any violation of N.C.G.S. § 7B–1104(6) to the trial court, or otherwise indicated to the trial court that the petitions were deficient in any way. Respondent only argued, at the close of Petitioners' evidence and at the close of all the evidence, that Petitioners had failed to present sufficient facts to the trial court to support the termination of Respondent's parental rights.
This Court, on procedural facts indistinguishable from those in this case, has held:
In the instant case, however, respondent failed to preserve this matter for appeal. “The Rules of Civil Procedure apply to proceedings for termination of parental rights[,]” and a Rule 12(b)(6) motion may not be made for the first time on appeal. [The][r]espondent made a motion to dismiss after the presentation of petitioner's evidence and at the close of all evidence. Those motions were based on the insufficiency of the evidence, not the legal insufficiency of the petition. Therefore, respondent has not properly preserved this issue for appeal, and this assignment of error is overruled.
In re H.L.A.D., 184 N.C.App. 381, 392, 646 S.E.2d 425, 434 (2007) (citations omitted), aff'd, 362 N.C. 170, 655 S.E.2d 712 (2008). Respondent has failed to preserve this issue for appellate review, and we dismiss her argument.
We now turn to Respondent's remaining contention that the trial court's order is deficient for failing to contain sufficient findings of fact to support the trial court's conclusion that Respondent willfully failed to pay child support and abandoned her children. The relevant findings of fact to support the trial court's orders are as follows:
3. The minor child has resided with the Petitioners for ten years [or since birth], and the Petitioners have been guardians appointed by the court for this period of time.
4. No parent has visited with the minor child since at least 9 1/2 years ago.
5. Neither parent has contacted or attempted to contact the minor child or the Petitioners in the last 9 1/2 years.
6. No support was received by the Petitioners by any parent in the last 9 1/2 years on behalf of the minor child.
The trial court chose to terminate Respondent's parental rights based upon Respondent's willful failure to pay child support and willful abandonment. With regard to the element of willfulness in failure to pay child support, there is no finding regarding Respondent's ability or capacity to pay child support nor the amount of child support she should have paid to DSS, see In re Clark, 151 N.C. App 286, 565 S.E.2d 245 (2002), or to the guardians. See In re Robertson, 97 N.C.App. 277, 387 S.E.2d 668 (1990); see also In re Ballard, 311 N.C. 708, 716–17, 319 S.E.2d 227, 233 (1984) (A finding that a parent has ability to pay support is essential to termination for nonsupport on this ground.) (citation omitted); In re T.D.P., 164 N.C.App. 287, 289, 595 S.E.2d 735, 737 (2004)aff'd,359 N.C. 405, 610 S.E.2d 199 (2005). There is also no finding weighing the evidence of Respondent's efforts to gain the capacity to pay child support or to evaluate what efforts, if any, Respondent had made. See In re C.C., 173 N.C. App, 375, 618 S.E.2d 813 (2005). A judicial resolution, in writing, finding at least some of these issues, is required to support a termination order on the basis of willful failure to pay child support. See Ballard, 311 N.C. at 716–17, 319 S.E.2d at 233.
Similarly, findings supporting willful abandonment are also required. Willful intent is a question of fact that must be found in writing by the trial court. In the past, our appellate courts have found that if a parent withholds the parent's presence, love, care, and opportunity to display filial affection and willfully neglects to lend support and maintenance, the parent relinquishes all parental claims and abandons the child. However, the factual findings showing the capacity to display such affection, and the requisite failure to do so, despite a capacity, are missing in the trial court's order and need to be supplied. See Pratt v. Bishop, 257 N.C. 486, 126 S.E.2d 597 (1962); In re Adoption of Searle, 82 N.C.App. 273, 275–76, 346 S.E.2d 511, 514 (1986). Our reading of the record and the transcript convinces us that there is some evidence upon which the trial court could have resolved these factual issues.
Because the trial court failed to make proper findings to support its conclusions that Respondent willfully abandoned her children and willfully failed to pay child support, we vacate the trial court's order terminating Respondent's parental rights on the grounds of willful abandonment and willful failure to pay child support. We remand the matter to the trial court to make such additional findings as are supported by the evidence. We leave to the discretion of the trial court the determination of whether to take any additional evidence from the parties.
Vacated in part and remanded in part. Judges STEPHENS and HUNTER, JR. concur.
Report per Rule 30(e).