Appeal by respondent-father from an order dated 2 September
2004 by Judge James T. Hill in Durham County District Court. Heard
in the Court of Appeals 19 October 2005.
Deputy County Attorney Thomas W. Jordan, Jr. for petitioner-
appellee Durham County Department of Social Services; Attorney
Advocate Wendy C. Sotolongo for Guardian ad Litem.
Peter Wood for respondent-father.
BRYANT, Judge.
On 31 December 2003, the Durham County Department of Social
Services (DSS) filed a Motion for Termination of the Parental
Rights of L.C.
(See footnote 1)
(respondent-father) to his three children, L.C.
(II), I.C., and L.C. (III). A hearing on the motion was held
before the Honorable James T. Hill on 27 April, 26-27 May and 4
June 2004. The parental rights of respondent-father regarding his
three children were terminated by an order dated 2 September 2004.
Respondent-father appeals.
_________________________
The dispositive issue presented on appeal is whether the trial
court's order failed to find any grounds upon which respondent-
father's parental rights could be terminated. Proceedings to
terminate parental rights have two phases, adjudicatory and
dispositional. At the adjudicatory phase, the trial court takes
evidence, makes findings of fact, and determines the existence or
nonexistence of grounds for termination. N.C. Gen. Stat. §
7B-1109(e) (2003). At this stage, the trial court's decision must
“be supported by clear, cogent and convincing evidence with the
burden of proof on the petitioner.”
In re Locklear, 151 N.C. App.
573, 575, 566 S.E.2d 165, 166 (2002). “Failure to state that
findings establishing those grounds were made by clear and
convincing evidence constitutes error.”
In re Anderson, 151 N.C.
App. 94, 98-99, 564 S.E.2d 599, 603 (2002). During the
dispositional phase, if the trial court determined that “any one or
more of the conditions authorizing a termination of the parental
rights of a parent exist,” it must order termination unless it
further determines “the best interests of the juvenile require that
the parental rights of the parent not be terminated.” N.C. Gen.
Stat. § 7B-1110(a) (2003).
Hearings on the termination of parental rights “shall be
conducted by the court sitting without a jury.” N.C. Gen. Stat. §
7B-1109(a) (2003). “In all actions tried upon the facts without a
jury or with an advisory jury, the court shall find the facts
specially and state separately its conclusions of law thereon anddirect the entry of the appropriate judgment.” N.C. Gen. Stat. §
1A-1, Rule 52(a)(1) (2003).
A “conclusion of law” is the court's statement
of the law which is determinative of the
matter at issue between the parties. A
conclusion of law must be based on the facts
found by the court and must be stated
separately. The conclusions of law necessary
to be stated are the conclusions which, under
the facts found, are required by the law and
from which the judgment is to result.
Montgomery v. Montgomery, 32 N.C. App. 154, 157, 231 S.E.2d 26,
28-29 (1977) (internal citations omitted).
In the instant case, the trial court's order contains the
following conclusion of law:
4. As to the respondent father . . . the
grounds upon which the petition for
termination is
filed are as follows:
a. The father has abused the
children, and the children are
abused children within the meaning
of G.S. 7B-101(1).
b. The father has neglected the
children and the children are
neglected children within the
meaning of G.S. 7B-101(15).
c. The father has willfully left the
child [sic] in foster care for more
than twelve (12) months without
showing to the satisfaction of the
[c]ourt that reasonable progress
under the circumstances has been
made in correcting those conditions
which led to the removal of the
children.
d. The children have been placed in
the custody of Durham DSS and their
father, for a continuous period of
six (6) months next preceding the
filing of the petition, has
willfully failed for such period topay a reasonable portion of the cost
of care for the children although
physically and financially able to
do so.
(Emphasis added.) The trial court then concluded it was in the
best interests of the children that the parental rights of their
father be terminated.
Section 7B-1109 of the North Carolina General Statutes
mandates the trial court “adjudicate the existence or nonexistence
of any of the circumstances set forth in G.S. 7B-1111 which
authorize the termination of parental rights of the respondent.”
N.C. Gen. Stat. § 7B-1109(e) (2003). The trial court's Conclusion
of Law Number Four does not determine the existence or nonexistence
of grounds for termination and is therefore not determinative of
the matter at issue. This conclusion of law merely reiterates “the
grounds upon which the petition for termination [was] filed” and
does not conclude that any of those grounds actually exist. Based
upon Conclusion of Law Number Four, it cannot be determined whether
the trial court correctly applied the law to its findings of fact.
See Montgomery, 32 N.C. App. at 158, 231 S.E.2d at 29.
We note we could speculate from the record before this Court
that the trial court was attempting to conclude as a matter of law
that several grounds existed to terminate respondent's parental
rights. However, the order appealed from does not contain
sufficient conclusions of law to support its adjudicatory
provisions. Accordingly, we must reverse and remand this matter to
the trial court with instructions to enter an order containing
conclusions of law consistent with N.C. Gen. Stat. § 7B-1109 if itdetermines the evidence in the adjudicatory hearing satisfies the
required standard of proof. The trial court shall determine
whether it is necessary to conduct an additional hearing.
Reversed and remanded.
Judges HUDSON and CALABRIA concur.
Report per Rule 30(e).
Footnote: 1