Termination of Parental Rights--during appeal of prior adjudication--same evidence
A termination of parental rights was vacated where it occurred during the pendency of the
appeal in a previous abuse and neglect adjudication, relied upon the same evidence, and was not
based on independent grounds
.
Renae S. Alt, attorney for petitioner-appellee.
HALL & HALL ATTORNEYS AT LAW, P.C., by Douglas L. Hall,
attorney for respondent-appellant mother.
David A. Perez, attorney for respondent-appellant father.
Judy N. Rudolph, attorney for guardian ad litem appellee.
TIMMONS-GOODSON, Judge.
Respondent mother and respondent father appeal an order of the
trial court terminating their parental rights to their adopted son.
After deliberate consideration, we vacate the trial court's order.
This Court, in an unpublished opinion, recently decided
respondents' appeal from an abuse and neglect adjudication judgment
and dispositional order. In Re Derreberry, 160 N.C. App. 252, 584
S.E.2d 892 (2003) (“B.D. I”). The factual history of petitioner's
involvement with the child through entry of the adjudication
judgment and dispositional order are fully set forth in ourprevious opinion, and we incorporate as necessary only those facts
germane to the present appeal.
The procedural history of the instant case is as follows: On
8 November 2000, the Buncombe County Department of Social Services
(“DSS”) filed a juvenile petition and summons alleging that the
child, who was then five years old, was physically abused and
neglected. Following an adjudication and dispositional hearing on
19 February 2001, the trial court entered an order on 20 March 2001
adjudicating the child neglected and granting custody of the child
to DSS. On 19 June 2001, DSS filed a second petition and summons
alleging that the child was sexually abused and neglected.
Following adjudication and dispositional hearings in September and
November 2001, the trial court entered an adjudication judgment and
dispositional order on 20 February 2002 wherein the trial court
adjudicated the child neglected and sexually abused.
In B.D. I, respondents appealed the 20 February 2002 order to
this Court, arguing in pertinent part that the trial court's
findings of fact were not supported by the evidence. Specifically,
respondents challenged petitioner's evidence regarding (1)
sightings of respondent father transporting the child to school in
his lap on a motorized wheelchair while riding on a busy highway in
the dark, (2) reports of sexual abuse, and (3) reports that
respondents withdrew the child from school for the purpose of home-
schooling him although respondents had few educational materials in
their home. The case was to be heard in the Court of Appeals on
23 April 2003. While B.D. I was pending, DSS filed a petition to terminate
respondents' parental rights dated 1 November 2002 on grounds of
neglect and that respondents willfully left the child in foster
care for more than twelve months without showing any reasonable
progress to correct the conditions which led to the child's removal
from the home. The trial court conducted the termination of
parental rights (“TPR”) hearing in February 2003. On 19 May 2003,
the trial court entered an order terminating respondents' parental
rights. In the adjudicatory portion of the TPR order, the trial
court acknowledged that respondents' appeal of the 20 February 2002
adjudication judgment and dispositional order was pending:
THE COURT FINDS AS FACTS BY CLEAR, COGENT, AND
CONVINCING EVIDENCE AS FOLLOWS:
. . . .
36. That [respondent father filed timely
Notice of Appeal [of the adjudication
judgment and dispositional order] on
February 27, 2002 and [respondent mother]
filed timely Notice of Appeal on March 1,
2002. To date, the appeals are still
pending.
Nevertheless, in the dispositional portion of the TPR order, the
trial court incorporated by reference the findings of fact
contained in the adjudication judgment and dispositional order:
THE COURT FINDS AS FACT THE FOLLOWING:
1. That the previous findings of the Court
are incorporated as though fully set out
herein. In addition to the previous
findings set out above the Court makes
further findings.
The trial court terminated respondents' parental rights on grounds
of neglect, and that respondents willfully left the child in fostercare for more than twelve months without showing reasonable
progress to correct the conditions that led to the child's removal
from the home. Almost four months later, on 2 September 2003, this
Court issued a ruling in B.D. I which affirmed the trial court's 20
February 2002 adjudication judgment and dispositional order.
Respondents now appeal the trial court's TPR order, raising
many issues pertaining to the conduct of the TPR hearing and the
findings of fact and conclusions of law contained in the TPR order.
However, the dispositive issue on appeal is whether the TPR order
was based on grounds independent of those challenged in B.D. I, as
required by In Re Stratton, 159 N.C. App. 461, 583 S.E.2d 323
(2003).
The issue of whether the trial court can enter an order
terminating parental rights while an underlying order is pending
appeal has been raised before this Court several times since 2003.
We have addressed the issue in many unpublished opinions and in the
following published opinions: In Re Stratton; In Re Hopkins, 163
N.C. App. 38, 592 S.E.2d 22 (2004); In Re N.B., 163 N.C. App. 182,
592 S.E.2d 597 (2004); In Re J.C.S., 164 N.C. App. 96, 595 S.E.2d
155 (2004); and In Re V.L.B., 164 N.C. App. 743, 596 S.E.2d 896
(2004). In Stratton and N.B., the trial court entered a TPR order
while this Court was reviewing an adjudication order on appeal. In
V.L.B, the trial court entered a TPR order while this Court was
reviewing a permanency planning order on appeal. In all three
cases, the Court of Appeals held that the trial court did not err
by entering the TPR order while the underlying order was on appeal,because the grounds upon which the trial court terminated parental
rights were independent of those found in the adjudication orders
and permanency planning order, respectively. Stratton, 159 N.C.
App. at 463-64, 583 S.E.2d at 324-25; N.B., 163 N.C. App. at 183-
84, 592 S.E.2d at 597-98; V.L.B., 164 N.C. App. at 745-46, 596
S.E.2d at 897-98. According to this line of cases, we have held
that the appeal of an underlying order is rendered moot by an
intervening TPR order if the trial court finds evidence of
independent grounds to terminate parental rights. Id.
Such is not the situation before the Court of Appeals this
day. In the instant case, unlike Stratton, N.B. and V.L.B., the
termination of parental rights is not based on independent grounds
as contemplated by Stratton. In the instant case, the trial court
terminated respondents' parental rights on grounds supported by the
same evidence challenged in B.D. I. Specifically, in B.D. I the
respondents argued that (1) “the trial court erred in admitting
evidence of [the child's] statements to social workers, the
guardian ad litem, and a nurse practitioner, arguing that this
testimony constituted inadmissible hearsay;” (2) “the trial court
erred by admitting unreliable expert opinion evidence” in the form
of testimony by Dr. Cynthia Brown; and (3) there was no evidence to
support the finding of fact regarding the child's inappropriate
behavior at school. Although this Court was reviewing the
admissibility of the evidence and its sufficiency to support the
trial court's findings of fact and resulting abuse and neglect
adjudication, the trial court relied on the evidence as a basis forterminating respondents' parental rights. In the TPR order, the
trial court stated the following:
THE COURT FINDS AS FACTS BY CLEAR, COGENT, AND
CONVINCING EVIDENCE AS FOLLOWS:
7. That the Buncombe County Department of
Social Services received a Child
Protective Services complaint on November
3, 2000. The report alleged that a
driver had almost hit a child on Highway
70 in the dark early morning. The child
was sitting on the lap of a man who was
running his motorized wheelchair on the
road, facing traffic, with no reflectors
on the chair. . . .
17. That [Social Worker Bob Cummings] and the
Guardian ad Litem attempted to assist in
the placement of [the child] in school,
but [respondent father] yelled that [the
child] would “go to public school over my
dead body[.”] [The child] was enrolled
in school in McDowell County for a period
of four days, but could not stay because
the [respondents] were not residents of
McDowell County. Other than that one
time, [the child] was never enrolled in
school during the time Mr. Cummings was
involved in this case. The [respondents]
stated that they were home schooling [the
child]. Mr. Cummings did see computer
games of an educational nature but saw no
other evidence that he was being home
schooled. The Guardian ad Litem, Ms.
Krebbs[,] was told by [respondent father]
that [the child] was removed from the
school because of her big mouth and that
she was never to see [the child] again
whether at the school or at their house.
33. That on or about May 30, 2001, the
Buncombe County Department of Social
Services received a report that [the
child] had been sexually abused by both
parents. . . .
37. That Naomi Kent, Social Worker, . . . met
with [the child] on or about May 29, 2001
at his foster parents home. She
interviewed [the child] in his bedroomalone. [The child] talked with her about
the [allegations of sexual abuse].
During the interview, [the child] crawled
under the bed for approximately ten
minutes. Ms. Kent interviewed [the
child] at the Boys' Club. During the
interview [the child] displayed
inappropriate behavior. At one point
during the interview, he jumped out of
the chair and pulled his pants down
exposing his genitals to Ms. Kent.
40. That Beth Osbahr, certified as an expert
witness in pediatric nursing trained in
sexual abuse involving juveniles
performed a [child medical evaluation].
After the examination her diagnostic
impression of [the child] was child sex
abuse, bruising on his lower legs, and
behavioral concerns. The determinative
factors she used to formulate her opinion
was the historical information she
received from the Guardian ad Litem and
Social Worker, what [the child] discussed
during the interview, [the child's]
behavior during the interview, [the
child's] lack of social boundaries that
he exhibited during the interview and his
medical problems with enuresis and
encopresis. There was no physical
evidence of sexual abuse.
41. Dr. Cynthia Brown, certified as an expert
witness in pediatric medicine,
collaborated with Ms. Osbahr in writing
the CME report. Dr. Brown noted many
characteristics exhibited by [the child]
fit those of a child who has been
sexually abused. Dr. Brown concurred
with Nurse Osbahr's impressions of child
sexual abuse and behavioral concerns.
42. [The child] was exhibiting sexualized
behavior [] prior to the involvement of
the Buncombe County Department. While at
W.D. Williams School he was “peeing” on
other children and exposing himself. Ms.
Krebbs, the Guardian ad Litem had two
disturbing incidences with [the child].
On one occasion, [the child] called her
into the bathroom and exposed himself to
her. On another occasion, while Ms.Krebbs was driving [the child] to an
appointment, [the child] had exposed
himself to a sixteen-month-old baby
whispering “look at me[.”] This behavior
has continued since [the child] has been
in the custody of the Department. At
summer camp during the summer of 2001
[the child] was asked not to return
because he was urinating on other
children, exposing himself and talking to
the counselors about “raping” them. That
behavior continued in summer camp during
2002, and after school began he was
suspended from the bus for exposing
himself.
These findings of fact, as well as the trial court's previous
findings incorporated by reference in the TPR order, are based on
the same evidence that this Court was reviewing in B.D. I at the
time the TPR was entered. The evidence of neglect challenged in
B.D. I is the same evidence of neglect presented at the TPR
hearing. There was no evidence of an independent basis for a
finding of neglect as required by Stratton. Thus, we conclude that
the trial court erred by terminating respondents parental rights
while the same grounds challenged in B.D. I were on appeal.
The trial court also terminated respondents' parental rights
on the ground that respondents left the child in foster care for
more than twelve months without showing any reasonable progress to
correct the conditions leading to removal. In the instant case,
the condition of continued neglect which led to the child's removal
from the home was established in part by the evidence challenged in
B.D. I. Because the evidence which demonstrates that respondents
have failed to correct the condition of neglect is inextricably
linked to the evidence challenged in B.D. I, we conclude that thetrial court also erred by terminating respondents' parental rights
on the foster care ground.
We recognize that this Court affirmed the adjudication
judgment and dispositional order in B.D. I. However, based on
Stratton and its progeny, we are compelled to vacate the underlying
TPR order.
VACATED.
Chief Judge MARTIN and Judge HUDSON concur.
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