IN RE: H.D. Cumberland County
J.B. Nos. 02 J 255-56
Juveniles
No brief for petitioner-appellee Cumberland County Department
of Social Services.
No brief for Guardian ad Litem.
Janet K. Ledbetter for respondent-appellant mother.
Richard E. Jester for respondent-appellant father.
HUNTER, Judge.
H.D.'s and J.B.'s mother and H.D.'s father challenge the trial
court's order terminating their parental rights. The father
contends (I) the evidence presented was insufficient to satisfy
N.C. Gen. Stat. § 7B-1111, (II) the findings of fact were not
supported by adequate evidence, (III) the trial court failed to
enter its order in the time required by N.C. Gen. Stat. § 7B-
1109(e), and (IV) the trial court erroneously excluded respondent's
notice of appeal from the final written order. Similarly, the
mother presents issues I, III, and IV for our consideration. In
addition, the mother also argues the trial court did not adjudicate
on the record grounds for the termination of her parental rightsand erroneously entered an order that did not conform with the
trial judge's oral ruling at the hearing. After careful
consideration, we reverse the trial court's order terminating the
father's parental rights; however, we affirm the termination of the
mother's parental rights.
The mother has a history of substance abuse problems. In
1997, the mother gave birth to a child who tested positive for
cocaine. Approximately a year later, in August 1998, the mother
gave birth to J.B. in prison, where she was serving a sentence for
the sale and trafficking of cocaine. The next year, in September
2000, she gave birth to H.D., who also tested positive for cocaine
at birth. Shortly after H.D.'s birth, in November 2000, J.B. and
H.D. were removed from the mother's care. The third child was not
residing with the mother at that time and is not a part of this
case.
After H.D. and J.B. were adjudicated dependent on 15 May
2001, Cumberland County Department of Social Services (“DSS”)
recommended substance abuse treatment and developed family service
case plans for the mother. However, the mother never successfully
completed any substance abuse treatment programs, parenting, or
anger management classes and did not have stable suitable housing.
She also never contributed financially to her children's care and
did not have consistent employment. The mother testified, however,
that after the petition to terminate her parental rights was filed,
she began working consistently, obtained stable suitable housing,
and sought treatment for her substance abuse problems. As to the father, DSS presented minimal evidence. Indeed, the
social worker testified her only contact with the father was in
court, and that she did not have any information regarding his
employment history. She testified that at the time of H.D.'s
birth, the father was incarcerated and, at the time of the hearing,
he was scheduled to be released in two to three weeks. As for
substance abuse, the father had one positive drug test and several
negative drug screens. The social worker also testified the father
did not have any ability to pay child support.
In contrast, the father's evidence indicated that his sister
was caring for H.D. and that while in prison he had sent several
letters to his sister regarding his daughter's care and that his
sister brought his daughter to the prison for visits. He also held
a leadership position in the Narcotics Anonymous and Alcoholics
Anonymous programs offered by the prison and the mother testified
that the father had encouraged her to seek help for her substance
abuse problems. Upon his release from prison, two weeks after the
hearing, the father would begin work with a construction
contractor.
After receiving evidence at the 18 March 2003 termination of
parental rights hearing, the trial court announced in open court
that there were sufficient grounds to terminate the parental rights
of C.S., the father of J.B., who was not present in court and is
not a party to this appeal. After the disposition hearing, the
trial court terminated the parental rights of all three parents.
The mother and H.D.'s father gave oral notice of appeal. Severalmonths later, the trial court filed its written order terminating
the parental rights of all the parents on 10 June 2003.
As an initial matter, we note the mother and father have
argued the trial court erroneously failed to indicate in its
written order that appellants gave oral notice of appeal. Although
N.C. Gen. Stat. § 7B-1113 requires notice of appeal to be in
writing, the trial court accepted appellants' oral notice of appeal
and indicated the notice of appeal would be incorporated into the
trial court's order. However, the order fails to include any
reference to the parties' oral notice of appeal. Given appellants'
failure to comply with the mandatory requirements of N.C. Gen.
Stat. § 7B-1113, which requires written notice of appeal to be
filed within ten days after entry of the order, appellants ask this
Court to consider its brief a petition for writ of certiorari
pursuant to N.C.R. App. P. 21(a). We grant appellants' petition
for writ of certiorari.
(See footnote 1)
17. That the Respondents have willfully left
the juveniles 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 has been made within twelve
months in correcting those conditions which
led to the removal of the juvenile(s). NCGS §
7B-(a)(2).
18. That the juveniles have been placed in
Cumberland County Department of Social
Services custody since 9/28/00 for [J.B.] and
11/16/00 for [H.D.], and that the Respondents
for a continuous period of six months next
preceding the filing of this petition havefailed to pay a reasonable portion of the cost
of care for the juveniles although physically
and financially able to do so, and the
respondent's have failed to regularly visit
the children since then. NCGS § 7B-
1111(a)(3), -1111(7).
19. That the Respondent putative fathers of
the juveniles, born out of wedlock, have
failed prior to the filing of this petition to
establish paternity judicially or by affidavit
or to legitimate said juveniles pursuant to
provisions of NCGS § 49-10 or filed petition
for this specific purpose, or to legitimate
the juveniles by marriage to the mother of the
said juveniles, or to provide substantial
financial support or consistent care with
respect to the said juveniles and their
mother. NCGS § 7B-1111(5).
20. That the Respondents have willfully
abandoned the juveniles for at least six
consecutive months immediately preceding the
filing of this petition. NCGS § 7B-1111(7).
After careful review of the record, we conclude these grounds were
not supported by clear, cogent, and convincing evidence.
First, N.C. Gen. Stat. § 7B-1111(a)(5) (2003) lists as a
ground for termination:
(5) The father of a juvenile born out of
wedlock has not, prior to the filing of a
petition or motion to terminate parental
rights:
a. Established paternity judicially or
by affidavit which has been filed in
a central registry maintained by the
Department of Health and Human
Services; provided, the court shall
inquire of the Department of Health
and Human Services as to whether
such an affidavit has been so filed
and shall incorporate into the case
record the Department's certified
reply; or
b. Legitimated the juvenile pursuant to
provisions of G.S. 49-10 or filed apetition for this specific purpose;
or
c. Legitimated the juvenile by marriage
to the mother of the juvenile; or
d. Provided substantial financial
support or consistent care with
respect to the juvenile and mother.
In this case, the social worker testified that “[d]uring a court
hearing [the father] stated that he was the father of [H.D.], and
the paperwork was signed to legalize him being the legal father.”
It is unclear whether such testimony means an affidavit of
paternity was filed with the Department of Health and Human
Services or some other method was undertaken. Nevertheless, given
the social worker's testimony that the father acknowledged
paternity and that the appropriate paperwork was signed, the trial
court's determination in Finding of Fact 19 that the father failed
to establish paternity of H.D. was not supported by clear, cogent
and convincing evidence.
(See footnote 2)
Second, in Finding of Fact 18, the trial court determined the
father had failed to pay a reasonable portion of the cost of care
for his daughter although physically and financially able to do so
for a continuous period of six months next preceding the filing of
the petition.
In determining what constitutes a
“reasonable portion” of the cost of care for a
child, the parent's ability to pay is the
controlling characteristic. . . .
“A parent is required to pay that portion of
the cost of foster care for the child that is
fair, just and equitable based upon the
parent's ability or means to pay. What is
within a parent's 'ability' to pay or what is
within the 'means' of a parent to pay is a
difficult standard which requires great
flexibility in its application.”
In re Clark, 151 N.C. App. 286, 288-89, 565 S.E.2d 245, 247 (2002)
(citation omitted). “[N]onpayment constitutes a failure to pay a
reasonable portion 'if and only if respondent [is] able to pay some
amount greater than zero.” Id. at 289, 565 S.E.2d at 247. In this
case, the social worker testified the father did not have an
ability to pay support. Specifically, the social worker testified
as follows:
Q. And you knew that he was in prison
and not able to pay child support; correct?
A. Yes.
. . .
Q. And you have no personal knowledge,
as you sit here today, as to whether or not
[the father] could have had the ability to
provide any child support; correct?
A. Not while being [] incarcerated.
Moreover, the social worker testified she did not have any
knowledge of the father's employment history. As there was no
evidence presented by DSS indicating the father had an ability to
pay an amount greater than zero, Finding of Fact 18 is not
supported by clear, cogent and convincing evidence.
In Finding of Fact 18, the trial court also determined the
father had not regularly visited with his daughter since being
placed in the custody of DSS. However, A.D., the father's sister,testified that H.D. had been in her custody since January 2001 and
that she has taken H.D. to visit her father in prison. A.D. also
testified the father had sent several letters to her asking about
his daughter's welfare. Thus, even though the father was
incarcerated, he made an effort to have his daughter visit him and
to communicate with her caretaker. Accordingly, we conclude
Finding of Fact 18 is not supported by clear, cogent and convincing
evidence.
Next, the trial court determined the father had willfully left
his daughter 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 in
correcting those conditions which led to his daughter's removal.
However, the record shows the father did not have any involvement
in the events or conditions leading to his daughter's removal from
the care of the mother. Indeed, the social worker testified that
DSS did not have a family service case plan in effect relating to
the father and that prior to the court proceedings, the social
worker had neither met the father nor had any information regarding
his background. Moreover, the social worker testified H.D. was
removed from her mother's care due to the mother's substance abuse
problems, lack of employment, and lack of stable housing. Finally,
“a respondent's incarceration, standing alone, neither precludes
nor requires finding the respondent willfully left a child in
foster care.” In re Harris, 87 N.C. App. 179, 184, 360 S.E.2d 485,488 (1987). Accordingly, we conclude Finding of Fact 17 is
unsupported by clear, cogent and convincing evidence.
Finally, in Finding of Fact 20, the trial court determined the
father had willfully abandoned his daughter for at least six
consecutive months immediately preceding the filing of the
petition. “'Abandonment implies conduct on the part of the parent
which manifests a willful determination to forego all parental
duties and relinquish all parental claims to the child.'” In re
Young, 346 N.C. 244, 251, 485 S.E.2d 612, 617 (1997) (citation
omitted). “It has been held that if a parent withholds his
presence, his love, his care, the opportunity to display filial
affection, and wilfully neglects to lend support and maintenance,
such parent relinquishes all parental claims and abandons the
child.” Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608
(1962). The word “'willful'” encompasses more than a mere
intention, but also purpose and deliberation. In re Adoption of
Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986).
In support of its determination that the father had willfully
abandoned his daughter, the trial court made the following findings
of facts:
11. None of the respondents provide any
financial, emotional or physical support for
the children.
12. Respondent [father] is incarcerated in
Lumberton, NC in DOC on drug related charges
for approximately 10 more months.
. . .
15. Family Service Case Plans were developed
on 9/28/00, 11/14/00, 1/17/01, 3/6/01, 8/21/01and 11/12/01 to address parenting issues,
housing, drug abuse and proper supervision.
All parties have failed to successfully
complete any reunification goals.
16. Since entering foster care the
Respondent[]s have had little or no contact
with the children.
First, we note the record does not support Findings of Fact 12, 15,
and 16 as it relates to the father. At the time of the hearing,
the father was scheduled to be released from prison in
approximately two weeks and had acquired employment in construction
to begin shortly thereafter. Second, as already indicated, the
social worker testified a family service case plan was never
developed for the father. In addition, the social worker testified
the father did not have any ability to pay child support. Finally,
the father's sister, who was taking care of the father's daughter,
took the daughter to visit her father in prison and testified the
father had sent several letters requesting information about his
daughter's health and well-being. Accordingly, we conclude the
findings of fact are not supported by the record. Moreover, the
record does not demonstrate the father withheld his presence, his
love, his care, the opportunity to display filial affection, and
willfully neglected to lend support and maintenance. Therefore,
clear, cogent and convincing evidence does not support the trial
court's determination that the father has willfully abandoned his
daughter.
As inferred from Santosky v. Kramer, 455 U.S. 745, 759, 71 L.
Ed. 2d 599, 610 (1982), termination of parental rights is an
extreme remedy. In such proceedings, there are “vital familialinterests at stake for both parent and child. When the county
prevails in termination of parental rights, it does not merely
infringe on a fundamental liberty, it ends it forever.” In re
Moore, 306 N.C. 394, 415-16, 293 S.E.2d 127, 139 (1982) (Carlton,
J., dissenting). Therefore, “in a proceeding to terminate parental
rights, . . . due process requires at least a 'clear and convincing
evidence' standard.” Price v. Howard, 346 N.C. 68, 76, 484 S.E.2d
528, 532 (1997).
In this case, as it relates to the father, the evidence
clearly did not meet the clear, cogent and convincing evidence
standard. The trial court terminated the father's parental rights
based upon minimal testimony from a social worker that had little
or no contact with the father. Moreover, the trial court's order
does not reflect a consideration of the evidence presented at the
hearing. The order indicated the father would be incarcerated for
ten more months, had failed to successfully complete any of the
reunification goals outlined in the family service case plans and
had not acknowledged paternity. However, the social worker and
other witnesses testified the father was scheduled to be released
in two to three weeks, had never been placed on a family service
case plan and had acknowledged paternity. Seemingly, the trial
court copied the allegations from the petition to terminate
parental rights and denominated them findings of fact. Indeed, the
trial court's findings of fact and conclusions of law are copied
verbatim from the petition filed by DSS to terminate his parental
rights. While there is no specific statutory criteria which must be
stated in the findings of fact or conclusions of law, the trial
court's findings must consist of more than a recitation of the
allegations. In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599,
602 (2002). “In all actions tried upon the facts without a jury
. . . the court shall find the facts specially and state separately
its conclusions of law thereon . . . .” N.C. Gen. Stat. § 1A-1,
Rule 52(a)(1) (2003). Thus, the trial court must, through
“'processes of logical reasoning,'” based on the evidentiary facts
before it, “find the ultimate facts essential to support the
conclusions of law.” In re Harton, 156 N.C. App. 655, 660, 577
S.E.2d 334, 337 (2003) (quoting Appalachian Poster Advertising Co.
v. Harrington, 89 N.C. App. 476, 479, 366 S.E.2d 705, 707 (1988)).
Finally, the trial court did not enter its order within the
time limits specified by North Carolina Statute. N.C. Gen. Stat.
§ 7B-1109(e) (2003) mandates “[t]he adjudicatory order shall be
reduced to writing, signed, and entered no later than 30 days
following the completion of the termination of parental rights
hearing.” The father's parental rights were terminated in a 17
April 2003 hearing; however, the order was not reduced to writing,
signed and filed until eighty-nine days after the hearing. This
Court has determined the failure to comply with N.C. Gen. Stat. §
7B-1109(e) does not require an order to be vacated unless there is
some indication of prejudice to a party. See In re J.L.K., ___
N.C. App. ___, 598 S.E.2d 387 (2004). However, we emphasize the
trial courts should adhere to the rules and procedures that governin termination of parental rights proceedings because the
termination of one's parental rights is an extreme remedy for both
the parent and the child. Indeed, the General Assembly amended
N.C. Gen. Stat. § 7B-1109 in 2001 to include the compulsory time
within which a hearing must be conducted and orders filed, in an
effort to avoid delays in proceedings to terminate parental rights.
2001 N.C. Sess. Laws ch. 208, §§ 7, 22, and 23.
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