Opinion
No. COA13–139.
2013-07-2
In the Matter of T.T.
Office of the Wake County Attorney, by Deputy Wake County Attorney Roger A. Askew, for petitioner-appellee Wake County Human Services. Mary McCullers Reece for the respondent-appellant father.
Appeal by respondent-father from order entered 25 October 2012 by Judge Margaret Eagles in Wake County District Court. Heard in the Court of Appeals 10 June 2013. Office of the Wake County Attorney, by Deputy Wake County Attorney Roger A. Askew, for petitioner-appellee Wake County Human Services. Mary McCullers Reece for the respondent-appellant father.
Hunton & Williams, by Jason S. Thomas and Jeffrey M. Sullivan, for the guardian ad litem.
ERVIN, Judge.
Respondent–Father Boris W. appeals from an order terminating his parental rights in his minor child, T.T. On appeal, Respondent–Father contends that the trial court erred by concluding that his parental rights in Timothy were subject to termination on the basis of neglect on the grounds that the trial court failed to find as a fact that the neglect to which Timothy had been subjected was likely to recur in the event that he was returned to Respondent–Father's care. After careful consideration of Respondent–Father's challenge to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be vacated and that this case should be remanded to the District Court of Wake County for the entry of a new order containing appropriate findings of fact.
T.T. will be referred to throughout the remainder of this opinion as Timothy, a pseudonym used for ease of reading and to protect the juvenile's privacy.
I. Factual Background
Timothy was born in 2010 to Respondent–Father and Shada T. In August 2010, the Wake County Department of Human Services received a report alleging that Timothy was neglected, resulting in the provision of in-home services from that point until April 2011. In August 2011, DSS received another report to the effect that Timothy was neglected stemming from the fact that Respondent–Father, who had been Timothy's primary caretaker since he was three weeks old, was homeless and could not care for his son. Although Respondent–Father had been staying with his maternal grandmother, he lost his home when she was evicted. As a result of the fact that Shada T. was incarcerated at the time that he lost his home, Respondent–Father left Timothy in the care of his brother's girlfriend.
The trial court's order terminated Shada T.'s parental rights in Timothy in addition to those of Respondent–Father. However, given that Shada T. did not note an appeal from the trial court's termination order, the validity of that determination is not before us in this case.
At a team meeting held on 10 August 2011, Respondent–Father and Shada T. were given specific tasks to perform, on the understanding that a juvenile petition would be filed and that Timothy would be taken into DSS custody in the event that they failed to perform these tasks. Among other things, Respondent–Father was required to come to DSS to develop a Family Service Plan. Although Respondent–Father came to the DSS office as instructed and attended an intake meeting at Family Legacy, he failed to follow through with the plan that was developed on that occasion, which included obtaining a mental health assessment and applying for social security benefits. As a result, DSS filed a juvenile petition on 6 October 2011 and took Timothy into its custody.
Both Respondent–Father and Shada T. had unstable lifestyles. Among other things, Respondent–Father admitted using marijuana. During the time that Timothy was in a safety placement, Respondent–Father never provided the caretakers with any assistance and rarely visited Timothy. For example, Respondent–Father did not have any contact with his son from 10 August 2011 until December 2011. On 8 December 2011, Respondent–Father admitted to a social worker that he was “stressed out” and did not feel that there was “anything that he [could] do.”
On 16 December 2011, the trial court entered an order adjudicating Timothy to be a neglected juvenile. In the resulting disposition order, the trial court ordered Respondent–Father to meet with DSS and develop a case plan which was intended to provide him with the opportunity to demonstrate that he had the ability to provide a safe home and appropriate care for Timothy and to correct the conditions that had led to Timothy's removal from Respondent–Father's custody. Respondent–Father never met with DSS for the purpose of developing an appropriate case plan, never called DSS, and made no effort to arrange to visit with Timothy. On the contrary, DSS heard nothing from Respondent–Father between December 2011 and May 2012.
In a March 2012 permanency planning order, the trial court concluded that Respondent–Father and Shada T. were unlikely to be able to provide a safe home for Timothy within a reasonable period of time, relieved DSS from any further responsibility for attempting to reunify Timothy with Respondent–Father and Shada T., and approved a permanent plan of adoption. On 4 April 2012, DSS filed a petition seeking to have the parental rights of Respondent–Father and Shada T. in Timothy terminated on the grounds of neglect.
According to a report received by DSS noted in a 6 March 2012 court report, Respondent–Father had been seen in the Moore Square area of Raleigh participating in physical altercations and using controlled substances. Respondent–Father was convicted of breaking or entering on 30 April 2012 and given an active sentence of imprisonment. At the time of the hearing, Respondent–Father was being held at Tabor Correctional Institution and had a projected release date of 21 November 2012. While in the custody of the Department of Correction, Respondent–Father had participated in Narcotics Anonymous, was taking a “Thinking for a Change” class, and had signed up to take an anger management class.
The trial court conducted a hearing concerning the termination petition on 28 September 2012. On 25 October 2012, the trial court entered an order finding that Respondent–Father's parental rights in Timothy were subject to termination on the grounds of neglect and that it would be in Timothy's best interests for Respondent–Father's parental rights to be terminated. Respondent–Father noted an appeal to this Court from the trial court's order.
II. Legal Analysis
A. Applicable Legal Principles
“The standard for review in termination of parental rights cases is whether the findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in turn, support the conclusions of law.” In re Clark, 72 N.C.App. 118, 124, 323 S .E.2d 754, 758 (1984). A parent's parental rights in a juvenile are subject to termination in instances in which the parent has acted in such a manner that the trial court finds the juvenile to be a neglected juvenile within the meaning of N.C. Gen.Stat. § 7B–101. N.C. Gen.Stat. § 7B–1111(a)(1). As a general proposition, “[i]n deciding whether a child is neglected for purposes of terminating parental rights, the dispositive question is the fitness of the parent to care for the child ‘at the time of the termination proceeding.’ “ In re L.O.K., 174 N.C.App. 426, 435, 621 S.E.2d 236, 242 (2005) (quoting In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984)). “Where, as here, a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, the trial court must employ a different kind of analysis to determine whether the evidence supports a finding of neglect.” In re Shermer, 156 N.C.App. 281, 286, 576 S.E.2d 403, 407 (2003). A trial court may terminate parental rights in the event that the juvenile has been previously found to be neglected and removed from the parents' custody if “the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to her parents.” In re Reyes, 136 N.C.App. 812, 815, 526 S.E.2d 499, 501 (2000). “Relevant to the determination of probability of repetition of neglect is whether the parent has made any meaningful progress in eliminating the conditions that led to the removal of [the] child[ ].” In re J. H.K., ––– N.C.App. ––––, 715 S.E.2d 563, 567 (2011) (citation and quotation marks omitted) (first alteration in original).
B. Analysis of Trial Court's Order
As a result of the fact that Respondent–Father has not challenged the sufficiency of the evidentiary support for the trial court's findings of fact in his brief, those findings of fact are binding on this Court for purposes of appellate review. In re M.D., 200 N.C.App. 35, 43, 682 S.E.2d 780, 785 (2009). Although the trial court's findings of fact clearly establish that Timothy had been neglected while in Respondent–Father's care, Timothy had been out of Respondent–Father's custody for almost twelve months at the time of the termination hearing. In light of that fact, the trial court was required to consider evidence of changed conditions and make a finding regarding the probability of a repetition of neglect in the event that Timothy were to be returned to the custody of Respondent–Father as a precondition for determining that Respondent–Father's parental rights in Timothy were subject to termination on the basis of neglect. Although the trial court made numerous findings of fact showing that Respondent–Father had not made any meaningful progress toward eliminating the conditions that led to Timothy's removal from his custody and that his lifestyle was unstable and not conducive to raising a child, the trial court failed to make an ultimate finding of fact regarding the probability of repetition of neglect. For that reason, the trial court's findings of fact do not suffice to support its determination that Respondent–Father's parental rights in Timothy were subject to termination on the grounds of neglect.
In seeking to persuade us to reach a different result, DSS and the Guardian ad Litem note that the trial court had orally announced at the hearing that it had determined that there was a likelihood that Timothy would be neglected in the future in the event that he was returned to Respondent–Father's care and argue that this oral announcement obviates the necessity for us to remand this case for further findings. Although the GAL cites In re Pope, 144 N.C.App. 32, 38 n. 4, 547 S.E.2d 153, 157 n. 4,aff'd, 354 N.C. 359, 544 S.E.2d 644 (2001), in support of this proposition, the portion of the Pope opinion to which our attention has been directed relates to a slight misstatement of the “probability of neglect” standard rather than to the total omission of any discussion of that issue from the trial court's written order. Similarly, although this Court did, as DSS notes, state in In re Brim, 139 N.C.App. 733, 739, 535 S.E.2d 367, 370 (2000), that “[t]he written order later entered does not differ in substance from that announced in open court” in rejecting a challenge to the fact that a written termination order differed from the trial court's oral announcement of its decision in open court at the conclusion of a termination hearing, the order in the present case is distinguishable from the order in Brim given that the written order here omits a finding of fact which is necessary to a determination that Respondent–Father's parental rights in Timothy were subject to neglect pursuant to N.C. Gen.Stat. § 7B–1111(a)(1). Thus, we do not find either version of this argument persuasive.
Although we tend to agree with DSS and the GAL that the trial court's findings of fact amply establish that Timothy is a neglected juvenile and would provide substantial support for an inference that the neglect to which Timothy had been previously subjected would recur in the event that he was returned to Respondent–Father's care and are satisfied that the omission of the required factual finding concerning the likelihood of future neglect from the trial court's order was purely by inadvertence, the fact-finding function in our system is a matter for the trial, not the appellate, courts. Moreover, given that the record contains some evidence that Respondent–Father had taken a limited number of steps while incarcerated to improve his conditions, we do not believe that we have the authority to supply the missing finding of fact on appeal or to determine that the omission of a necessary finding of fact, even one with ample evidentiary support, can be deemed to constitute harmless error. As a result, we vacate the trial court's termination order and remand this case to the Wake County District Court for entry of a new order with appropriate findings of fact.
VACATED AND REMANDED. Judges GEER and STEPHENS concur.
Report per Rule 30(e).