Opinion
No. COA15-818
04-05-2016
IN THE MATTER OF: W.P.B., B.D.J., A.G.J., B.J.J.
Eggers, Eggers, Eggers, & Eggers, PLLC, by Stacy C. Eggers, IV, for petitioner-appellee Watauga County Department of Social Services. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Joyce L. Terres, for respondent-appellant mother. Matthew D. Wunsche, for guardian ad litem.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Watauga County, Nos. 14 JT 12-15 Appeal by respondent from orders entered 15 April 2015 by Judge Hal G. Harrison in Watauga County District Court. Heard in the Court of Appeals 7 March 2016. Eggers, Eggers, Eggers, & Eggers, PLLC, by Stacy C. Eggers, IV, for petitioner-appellee Watauga County Department of Social Services. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Joyce L. Terres, for respondent-appellant mother. Matthew D. Wunsche, for guardian ad litem. DIETZ, Judge.
Respondent-mother appeals from the trial court's orders terminating her parental rights to her four children based on neglect and dependency. Respondent argues—and we agree—that the trial court's orders do not contain any findings of likelihood of future neglect (required to terminate parental rights on grounds of neglect in a case like this one) or findings concerning the lack of alternative care arrangements for the children (required to terminate parental rights on grounds of dependency in a case like this one). Accordingly, we must vacate and remand this case. On remand, the trial court may determine whether the evidence in the record would support the missing findings and, if so, may include those findings in new orders terminating Respondent's parental rights.
Facts and Procedural History
On 14 April 2014, the Watauga County Department of Social Services took Respondent's four children, William, Brandon, Anna, and Brianna into nonsecure custody and filed juvenile petitions alleging that all four children were neglected and dependent juveniles and that William was an abused juvenile. According to the petitions, nine-year-old William had not attended school since September 2013 and, when DSS interviewed William, he described physical and sexual abuse by both Respondent and his step-father. He also indicated that he hid in a car or in closets during the day so that other family members would not notice that he was not in school. The petition alleged that the family had a history of involvement with various social service agencies.
We use pseudonyms to protect the children's privacy.
In orders entered on 9 June 2014, the trial court adjudicated all four children neglected and dependent, and adjudicated William abused. In separate disposition orders, the court maintained custody with DSS, ceased reunification efforts, and changed the children's permanent plans to adoption or guardianship with a non-relative.
On 29 September 2014, DSS filed petitions to terminate Respondent's parental rights, alleging neglect and dependency as grounds for termination as to all four children. See N.C. Gen. Stat. § 7B-1111(a)(1), (6). DSS also alleged abuse as a ground for termination as to William. See id. § 7B-1111(a)(1).
Following a hearing, the trial court entered orders on 15 April 2015 terminating Respondent's parental rights to all four children based on neglect and dependency. Respondent timely appealed.
Analysis
Respondent argues that the trial court's findings of fact do not support its conclusions of law concerning neglect and dependency. Whether the trial court's conclusions are supported by its fact findings is a legal question that we review de novo. In re S.N., 194 N.C. App. 142, 146, 669 S.E.2d 55, 58-59 (2008) aff'd, 363 N.C. 368, 677 S.E.2d 455 (2009). As explained below, we hold that the trial court's findings do not support its conclusions of law, and we therefore vacate and remand this matter. We leave it to the trial court to determine on remand whether the evidence in the record would support the necessary findings that are missing from the challenged orders.
I. Findings concerning neglect
Our juvenile code provides for termination based upon a finding that "[t]he parent has . . . neglected the juvenile." N.C. Gen. Stat. § 7B-1111(a)(1). Neglect is defined as follows:
Neglected juvenile. - A juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law.N.C. Gen. Stat. § 7B-101(15) (2013).
Generally, "[a] finding of neglect sufficient to terminate parental rights must be based on evidence showing neglect at the time of the termination proceeding." In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997). But "[w]here, 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). The trial court may consider past neglect in its analysis, but past neglect, standing alone, is generally insufficient to support termination. In re Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984). In addition, when there is no evidence of neglect at the time of the termination proceeding, the trial court must find "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).
Here, Respondent contends that the trial court's findings only concern past neglect and that there are no findings supporting the conclusion that this past neglect is likely to be repeated if the children were returned to respondent's custody. We agree. The orders reference and discuss the previous adjudication of neglect and the facts supporting that adjudication but do not contain any findings indicating that the neglect is likely to be repeated if the children are returned to Respondent:
9. Facts supporting the stated grounds for terminating the parental rights of the Respondent Mother include, but are not limited to:
a. The Juvenile has been neglected by the Respondent Mother as the term is defined by N.C.G.S. § 7B-101(15) in that the Respondent Mother has allowed the Juvenile to live in an environment injurious to the Juvenile's welfare and contributed to same including providing inadequate housing, providing an inadequate education, and providing an unsafe physical environment.
b. The Respondent Mother has allowed the abuse of the Juvenile and has taken part in the abuse and neglect of the Juvenile as set forth in the Order on Adjudication and Interim Disposition in this matter, and the Court adopts and incorporates all findings of fact as set forth in the Order on Adjudication and Interim Disposition as tendered in this matter which support the findings of fact set forth herein, some of which are specifically set
The remaining portion of Finding of Fact 9 is taken verbatim from the earlier adjudication orders for the children. The orders also contain two findings of fact referred to as "Additional Findings," but those findings are directed at criteria for disposition, not the adjudication of neglect, and likewise fail to find the neglect is likely to recur. Simply put, this Court acknowledges that the conditions leading to the children's removal are deplorable, and while there may be facts in the record supporting termination based on neglect, the trial court's order does not contain those required fact findings.forth herein as follows in support of a termination of parental rights as to the Respondent Mother.
The trial court entered a separate termination order for each child. The orders are nearly identical and the differences in each are attributable to the differences between the children. Because the substance of the orders is identical, we quote only one order instead of all four for ease of reading.
II. Findings concerning dependency
The trial court also terminated Respondent's parental rights based on dependency under N.C. Gen. Stat. § 7B-1111(a)(6). That provision requires a finding that:
the parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101, and that there is a reasonable probability that such incapability will continue for the foreseeable future. Incapability under this subdivision may be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other cause or condition that renders the parent unable or unavailable to parent the
juvenile and the parent lacks an appropriate alternative child care arrangement.N.C. Gen. Stat. § 7B-1111(a)(6). In determining whether a juvenile is dependent, the trial court is required to "address both (1) the parent's ability to provide care or supervision, and (2) the availability to the parent of alternative child care arrangements." In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005). A trial court must make findings of fact addressing both of these prongs before it can terminate parental rights based on dependency, and the court's failure to make these findings requires reversal. See In re C.N.C.B., 197 N.C. App. 553, 558, 678 S.E.2d 240, 243 (2009). Respondent argues that the trial court failed to make sufficient findings with respect to either prong.
We agree with Respondent that the trial court failed to make any findings that she lacked an appropriate alternative child care arrangement. As explained above, nearly all of the trial court's findings were taken from the earlier adjudication order focusing on William's abuse. None of those findings reference the lack of an alternative care arrangement. Accordingly, we cannot sustain the trial court's judgment on this basis.
As noted above, our holding does not mean the record cannot support termination based on dependency. We hold only that the challenged orders lack a specific fact finding that our precedent requires, and we must therefore vacate and remand. On remand, the trial court is free to examine the record, make additional findings if appropriate, and enter new orders terminating Respondent's parental rights on one or both of the grounds addressed in the orders challenged in this appeal.
Conclusion
We vacate and remand the trial court's orders.
VACATED AND REMANDED.
Judges ELMORE and GEER concur.
Report per Rule 30(e).