IN THE MATTER OF: TAMMY RUTH MATHERLY
Alamance County Guardian ad Litem Elisa A. Chinn-Gary for
Petitioner-Appellee.
Walker & Bullard, by Daniel S. Bullard, for respondent-
appellant.
THOMAS, Judge.
Respondent, Lynette Matherly, appeals from an order entered by
the trial court terminating her parental rights to Tammy Ruth
Matherly. Because the trial court did not specify what standard it
used in making findings of fact, and because those findings were
insufficiently detailed as to respondent's willfulness and
capability, we reverse and remand.
The facts are as follows: Respondent was fourteen years old
when she gave birth to Tammy on 3 April 1997. Approximately
fifteen months later, respondent, then living in Arizona, allowed
Tammy to go on an extended trip with respondent's father and
stepmother. The trip ended in a motel room in July 1998 when theAlamance County Department of Social Services (DSS) found Tammy and
seven of respondent's siblings in a state of neglect. Respondent's
stepmother, the only adult present in the motel room, was charged
with eight counts of child abuse and jailed.
Tammy was immediately placed in the custody of DSS, and after
a hearing on 3 and 4 November 1998, was adjudicated neglected and
dependent. Among its findings, the trial court determined that
Tammy had been improperly fed, suffered from head lice, and did not
have a stable residence. The trial court also found that Tammy had
been in the custody of her step-grandmother at the time of DSS's
intervention, but the step-grandmother was in jail because of the
child abuse charges. At disposition, the trial court ordered
Tammy's custody to remain with DSS. Respondent was not present at
either the adjudicatory or dispositional hearings.
In February 1999, respondent, who turned sixteen years old on
16 December 1998, moved to North Carolina and began working with
DSS in an effort to reunify with Tammy. Her efforts were not long-
lasting or consistent. Respondent set up an appointment with a
therapist and began the sessions, but she stopped prior to being
released. She began visits with Tammy, but often failed to keep
the appointments. Respondent attended four parenting classes, but
then failed to appear for two additional ones or for a second set
that had been recommended by petitioner, the guardian ad litem. On 1 March 2000, petitioner filed for the termination of
respondent's and the putative father's parental rights. Respondent
was seventeen years old and was appointed an attorney and guardian
ad litem. The paternity of the father still had not been
established, with service on him being accomplished by publication.
The petition alleges, inter alia, that: (1) respondent failed
to attend eleven out of sixteen regularly scheduled visits with
Tammy during 1999 and 2000; (2) respondent failed to advise her
social worker of her whereabouts during a three-week period; (3)
respondent failed to establish and maintain a stable residence; (4)
respondent failed to comply with court directives concerning
financial support; (5) respondent left Tammy in foster care or
placement outside the home for more that twelve months without
showing the court that she has made reasonable progress toward
correcting the conditions that led to Tammy's removal; (6)
respondent failed to obtain and maintain permanent employment; and
(7) Tammy was born out of wedlock and has not been legitimated.
There is a two-step process in a termination of parental
rights proceeding. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246
(1984). In the adjudicatory stage, the trial court must find that
at least one ground for the termination of parental rights listed
in N.C. Gen. Stat. § 7B-1111 exists. N.C. Gen. Stat. § 7B-1109
(1999). The petitioner has the burden throughout the adjudicatorystage to prove by clear and convincing evidence that facts
establishing the grounds for termination exist. See N.C. Gen.
Stat. § 7B-1111(b). Once one or more of the grounds for
termination are established, the trial court must proceed to the
dispositional stage where the best interests of the child are
considered. There, the court shall issue an order terminating the
parental rights, unless it further determines that the best
interests of the child require otherwise. N.C. Gen. Stat. §
7B-1110(a) (1999). See also In re Blackburn, 142 N.C. App. 607,
543 S.E.2d 906 (2001).
In the instant case, the termination grounds found by the
trial court were: (1) that respondent had willfully left the child
in foster care or placement outside the home for more than twelve
months without showing to the satisfaction of the court that
reasonable progress under the circumstances had been made to
correct the conditions leading to the child's removal; (2) that
respondent had willfully failed to pay a reasonable portion of the
child's costs for a continuous period of six months preceding the
petition, although respondent was physically and financially able
to do so; (3) the child was born out of wedlock and the putative
father had not judicially established paternity nor legitimated the
child by marrying respondent or by providing support to the child
or respondent; and (4) that respondent is incapable of providingproper care for the child and there is a reasonable probability
that such incapacity will continue for the foreseeable future based
on the mother's present circumstances. See N.C. Gen. Stat. §§ 7B-
1111 (a) (2), (3), (5) and (6) (1999).
The trial court, however, did not state that the findings as
to any of the grounds were made by “clear, cogent and convincing
evidence.” This Court has held that the trial court must recite
the standard of proof in the adjudicatory order and that a failure
to do so is error. See In re Lambert-Stowers, ___ N.C. App. ___,
552 S.E.2d 278 (2001); In re Church, 136 N.C. App. 654, 657, 525
S.E.2d 478, 480 (2000). We thus reverse and remand the matter to
the trial court with instructions to determine whether the evidence
in the adjudicatory hearing satisfies the required standard of
proof.
Further, we note that the trial court's written findings as to
respondent's financial and employment abilities do not evidence an
appropriate consideration of respondent's age. She was fifteen
years old when DSS first took custody of Tammy and was seventeen
when the petition to terminate her parental rights was filed.
Throughout the trial court's involvement, respondent herself was a
juvenile, an unemancipated minor, under N.C. Gen. Stat. § 7B-
101(14).
A careful evaluation of the facts by the trial court here iscritical, particularly after this Court's opinion, affirmed by our
Supreme Court, to hold grandparents responsible for the support of
the offspring of their minor child. See Whitman v. Kiger, 139 N.C.
App. 44, 533 S.E.2d 807 (2000), aff'd, 353 N.C. 360, 543 S.E.2d 476
(2001). In In re Ballard, our Supreme Court held that a “finding
that a parent has [the] ability to pay support is essential to
termination for nonsupport on this ground.” In re Ballard, 311
N.C. 708, 716-17, 319 S.E.2d 227, 233 (1984). Additionally, there
was no finding that respondent was emancipated and legally
competent to “establish” her own residency when respondent was only
sixteen years old. DSS's “care plan” had included an objective
that she do so.
Additionally, there must be a proper application of the words
“willfully” in grounds (2) and (3) and “incapable” in ground (6)
under N.C. Gen. Stat. § 7B-1111. This Court has had numerous
occasions to consider the meaning of willfulness as used in
statutes such as these. The word 'imports knowledge and a stubborn
resistance. . . one does not willfully fail to do something which
it is not in his power to do.'” In re Moore, 306 N.C. 394, 411,
293 S.E.2d 127, 137 (1982)(Carlton, J., dissenting)(citations
omitted), appeal dismissed, 459 U.S. 1139, 74 L. Ed. 2d 987 (1983).
Evidence showing a parents' ability, or capacity to acquire the
ability, to overcome factors which resulted in their children beingplaced in foster care must be apparent for willfulness to attach.
In re Wilkerson, 57 N.C. App. 63, 291 S.E.2d 182 (1982). In the
instant case, it is not apparent from the trial court's order that
“willfulness” was adequately addressed.
The trial court must make specific findings of fact showing
that a minor parent's age-related limitations as to willfulness
have been adequately considered. See generally, N.C. Gen. Stat.
§ 7B-1110(b) (1999). Likewise, the juvenile court is under a duty
to make findings as to whether a minor parent's inevitable move
into adulthood is likely to cure what would otherwise form the
basis of an incapability under section 7B-1111(a)(6).
Accordingly, we remand this issue as well to the trial court
with instructions to make appropriate findings as to respondent's
willfulness and capability consistent with this opinion. The trial
court may take additional evidence in its discretion.
REVERSED AND REMANDED.
Judges WYNN and HUDSON concur.
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