1. Termination of Parental Rights--standard of proof--clear and convincing
evidence--statement required in order
The order of the trial court terminating respondents' parental rights is vacated and
remanded because N.C.G.S. § 7A-289.30(e) (now N.C.G.S. § 7B-1109(f)) requires the trial
court to affirmatively state in its order the clear and convincing evidence standard of proof
utilized in the termination proceeding, and the order failed to do so.
2. Termination of Parental Rights--sufficiency of evidence
Although there was competent evidence before the trial court to support a finding that
statutory grounds existed under N.C.G.S. § 7A-517 (now N.C.G.S. § 7B-100 et seq.) to
terminate parental rights based on neglect, dependence, and the children being placed in foster
care for a period of twelve months, this case must be remanded for the trial court to determine
whether the evidence satisfies the required standard of proof of clear and convincing evidence
under N.C.G.S. § 7A-289.30(e) (now N.C.G.S. § 7B-1109(f)).
Caldwell County Department of Social Services, by Darrell
Pope, Staff Attorney, for petitioner-appellee.
Joseph C. Delk, III for respondent-appellant Church.
Scott D. Conrad for respondent-appellant Joplin.
No brief filed by Guardian Ad-Litem Dewey Keller.
WALKER, Judge.
Respondents' parental rights were terminated in the Caldwell
County Juvenile Court on 26 August 1998. Respondents Robert
Charles Church and Michelle Renae Joplin, although never married,are the biological parents of the minor children K.M.C. and H.E.C.
Caldwell County Department of Social Services (DSS) has been
involved with the respondents since July 1994.
After petitions alleging neglect and dependency were filed
on 20 February 1996, the children were ordered into non-secure
custody with DSS and were returned to the home of respondent
Joplin on 13 March 1996 after temporary improvements made by
respondent Joplin. Respondent Church moved from respondent
Joplin's house on or about 1 April 1996. After conditions at
respondent Joplin's house deteriorated, another non-secure custody
order placing the children with DSS was entered 23 April 1996 and
continued in effect until the children were adjudicated to be
neglected and dependant at the 29 May 1996 hearing when DSS took
custody of the children. Pending the next hearing on 28 August
1996, respondents showed little improvement and custody remained
with DSS. However, by the next review on 27 November 1996,
respondents exhibited substantial improvements and the children
were returned to respondents' home on 24 December 1996. At the
court ordered review on 26 February 1997, reunification efforts
were continued and at the next review on 28 May 1997, full legal
custody was returned to the respondents and no further reviews
were scheduled.
The children remained in respondent Joplin's home until 18
July 1997, when the children were found unsupervised at 10:00 p.m.
walking down the road in the mobile home park in which they lived.
The children were transported to DSS later that night and were
placed with respondent Church's mother, the paternal grandmother,until some time after the adjudication. Respondent Church was
residing with his mother at the time.
On 5 August 1997, a petition was filed alleging abuse,
neglect, and dependency. The trial court adjudicated the children
neglected and dependent at the adjudication hearing and returned
custody of the children to DSS on 8 October 1997. On 31 October
1997, a petition to terminate respondents' parental rights was
filed, which was granted by the trial court at the 26 August 1998
hearing.
[1]Respondents assign as error the trial court's failure to
recite the standard of proof relied upon in terminating parental
rights. Specifically, the trial court's failure to state that the
findings of fact adduced from the 26 August 1998 adjudicatory
hearing were based upon clear, cogent, and convincing evidence is
reversible error.
The North Carolina termination statute establishes a
two-stage termination proceeding. N.C. Gen. Stat. § 7A-289.30
(See footnote 1)
,
governs the adjudication stage and provides in part:
(d) The court shall take evidence, find the
facts, and shall adjudicate the existence or
nonexistence of any of the circumstances set
forth in G.S. 7A-289.32 which authorize the
termination of parental rights of the
respondent.
(e) All findings of fact shall be based on
clear, cogent, and convincing evidence.
N.C. Gen. Stat. § 7A-289.30 (1995). N.C. Gen. Stat. § 7A-289.31
(See footnote 2)
governs the disposition stage of
a termination proceeding and provides in pertinent part that: (a) Should the court determine
that any one ormore of the conditions authorizing a
termination of the parental rights of a parent
exist, the court shall issue an order
terminating the parental rights of such parent
with respect to the child unless the court
shall further determine that the best
interests of the child require that the
parental rights of such parent not be
terminated.
N.C. Gen. Stat. § 7A-289.31(a)(1995). Our Supreme Court, in
addressing these two sections, has stated:
in the adjudication stage, the petitioner must
prove clearly, cogently, and convincingly the
existence of one or more of the grounds for
termination listed in N.C. Gen. Stat. §
7A-289.32. Once the petitioner has proven
this ground by this standard, it has met its
burden within the statutory scheme of N.C.
Gen. Stat. § 7A-289.30(d) and (e) and §
7A-289.31(a). The petitioner having met his
burden of proof at the adjudication stage, the
court then moves on to the disposition stage,
where the court's decision to terminate
parental rights is discretionary.
In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984).
Sections 7A-289.30 and 7A-289.31 “provide that the court exercises
its discretion in the dispositional stage only after the court has
found that there is clear and convincing evidence of one of the
statutory grounds for terminating parental rights during the
adjudicatory stage.” In re Carr, 116 N.C. App. 403, 407, 448
S.E.2d 299, 302 (1994). Although the termination statute does not specifically require
the trial court to affirmatively state in its order terminating
parental rights that the allegations of the petition were proved by
clear and convincing evidence, without such an affirmative
statement the appellate court is unable to determine if the proper
standard of proof was utilized. Furthermore, we note the
legislature has specifically required the standard of proof
utilized by the trial court be affirmatively stated in the context
of delinquent, undisciplined, abuse, neglect and dependent
proceedings. N.C. Gen. Stat. § 7A-637 (1995)
(See footnote 3)
. Because
termination proceedings and delinquent, undisciplined, abuse,
neglect, and dependent proceedings are all contained in a single
chapter of the General Statutes and relate to the same general
subject matter, we construe these statutes together to determine
legislative intent. See Carver v. Carver, 310 N.C. 669, 674, 314
S.E.2d 739, 742 (1984). Accordingly, we read section 7A-289.30(e)
(now section 7B-1109(f)) to require the trial court to
affirmatively state in its order the standard of proof utilized in
the termination proceeding.
Here, in its adjudicatory order, the trial court concluded in
part:
2. Statutory grounds pursuant to Chapter 7A
of the General Statutes of North Carolina
exist to terminate the parental rights of both
named parents as set forth below:
a. With respect to both parents,
both children are neglected within
the meaning of N.C. Gen. Stat. § 7A-
517(21);
b. With respect to both parents,
they are incapable of providing for
the proper care and supervision of
these children such that the
children are dependent within the
meaning of N.C. Gen. Stat. § 7A-
517(13) and that there is a
reasonable probability that such
incapability will continue in the
foreseeable future;
c. Pursuant to N.C. Gen. Stat. §
7A-289.32(3), the children were in
the full legal and physical custody
of the Caldwell County Department of
Social Services on three separate
occasions totaling over sixteen
months (at time petition was filed)
or 26 months (at time of hearing on
this petition) and neither parent
has shown to the satisfaction of the
Court that reasonable progress under
the circumstances has been made to
correct the conditions which led to
the removal of the children.
The trial court failed to recite the standard of proof applied
in its adjudication order and its failure to do so is error.
Petitioner contends that even if the trial court erred by not
stating the standard of proof, the error should be deemed “harmless
error where the Respondent-Appellant is not prejudiced and the
trial court in fact based its decision upon sufficient evidence and
testimony which was clear, cogent, and convincing to the trial
court.” However, since the trial court is required to state that
the proper standard of proof has been applied, we cannot conclude
the error here was harmless. [2]Next, respondents argue that the trial court's conclusions
that statutory grounds existed to terminate parental rights based
on neglect, dependence, and the children's being placed in foster
care for a period of twelve months were not supported by sufficient
evidence.
A review of the record reveals there was competent evidence
before the trial court to support a finding that any of the above
three statutory grounds existed for termination of parental rights.
However, the case must be remanded for the trial court to determine
whether the evidence satisfies the required standard of proof of
clear and convincing evidence.
Vacated and remanded.
Judges GREENE and HUNTER concur.
*** Converted from WordPerfect ***