IN THE MATTER OF: Greene County
No. 03 JT 43
J.M.P.,
A Minor Child.
Tim Finan, for Guardian ad Litem.
LEVINSON, Judge.
Respondent-father (father) appeals from an order terminating
his parental rights in J.M.P. We reverse.
The pertinent facts may be summarized as follows: On 6 June
2003, the Greene County Department of Social Services (DSS) filed
a petition alleging that J.M.P. was a neglected juvenile and
“live[d] in an environment injurious to [his] welfare.” The
petition alleged, in part, that father struck K.W., a child of
Lakeisha W., with a “hard plastic miniblind wand.” Father was
living with his girlfriend, Lakeisha W., at the time. An
examination of K.W. revealed marks consistent with being struck
with a wand because she had “multiple scars, bruises [and] healinglacerations on her thighs, buttocks, lower back and abdomen.”
Father stated that, while he routinely spanked K.W., he used a belt
instead of a miniblind wand. When K.W. was asked how she received
the marks, she replied, “Mike beat me up.”
When K.W. was removed from her mother's home, Lakeisha W. was
pregnant with J.M.P. After the birth of J.M.P., DSS worked with
Lakeisha W. to protect J.M.P. from father. Consequently, a safety
assessment and plan was signed by Lakeisha W. on 29 May 2003; the
plan provided that father would “have no contact with [J.M.P.]”.
However, DSS asserted, on 6 June 2003 father was observed in
Lakeisha W.'s home. DSS therefore obtained nonsecure custody of
J.M.P. on 6 June 2003 and, in a 1 August 2003 order, the trial
court found that father violated the safety plan by having contact
with J.M.P. in the home of Lakeisha W. The trial court concluded
that J.M.P. was a neglected juvenile, and required that father (1)
have no visitation with the juvenile, (2) attend parenting and
anger management classes, (which he completed in April and May of
2004), and (3) undergo a complete psychological and psychiatric
evaluation.
A mental health evaluation conducted by Wilson-Greene Mental
Health, Developmental Disabilities and Substance Abuse Services
revealed the following concerning father: a potential anti-social
personality disorder; reported marijuana use at age 15 with the
last reported usage in mid August 2003 when he smoked one “blunt”
daily; and involvement in drug dealing activities within the
preceding year. On 14 November 2003, DSS was relieved of itsefforts to reunify J.M.P. with father and, on 24 November 2003, DSS
filed a petition to terminate the parental rights of father and
Lakeisha W. on the basis that both parents neglected the juvenile.
The case came on for hearing on 27 September 2004.
Evelyn Corbett, a case manager for DSS, testified that
Lakeisha W. signed a safety assessment because she wanted to ensure
that father had no contact with J.M.P. because he had previously
abused J.M.P.'s half-sibling, K.W. Corbett further testified that,
since working on the case, she only had “limited contact” with
father and that he failed to attend permanency planning hearings.
Corbett stated that father never made DSS aware of his residence,
and that she did not believe that father followed up with any
treatment as a result of the mental health evaluation. Corbett
stated she had no information that father directly harmed J.M.P.
Father testified. He was currently housed at a Department of
Corrections facility and had not completed mental health treatment
since having the evaluation. Although father pled guilty to
abusing K.W., he stated, “I didn't mean to spank her.” Father
stated that he “smoked marijuana occasionally[,]” and that he
spanked one of his sons on the hand.
By order entered 20 December 2004, the trial court concluded
that father neglected J.M.P. and terminated his parental rights in
him. From this order father now appeals.
While father makes several arguments on appeal, we address one
that is dispositive. Father contends that the trial court failedto make the required findings regarding the likelihood of future
neglect of J.M.P. We agree.
For a termination of parental rights based on neglect, the
trial court must determine whether neglect is present at the time
of the termination proceeding. See In re Ballard, 311 N.C. 708,
716, 319 S.E.2d 227, 232 (1984). If a juvenile should ever be
removed from the parent before the date of the termination hearing
“evidence of neglect by a parent prior to losing custody . . . is
admissible in subsequent proceedings to terminate parental rights.”
Id. at 715, 319 S.E.2d at 232. However, in those circumstances,
“parental rights may [] be terminated if there is a showing of a
past adjudication of neglect and the trial court finds by clear and
convincing evidence a probability of repetition of neglect if the
juvenile were returned to [his] parents.” In re Reyes, 136 N.C.
App. 812, 815, 526 S.E.2d 499, 501 (2000) (emphasis added).
In the instant case, the trial court's order entered 20
December 2004 is devoid of any finding regarding the probability
that neglect will recur if J.M.P. was returned to father's care.
Consequently, in the absence of a specific finding as to a
probability of repetition of neglect, as required by Reyes, the
trial court's order must be reversed and remanded for entry of a
new order.
Father also argues on appeal that the petition to terminate
parental rights does not provide the required notice as to what
conditions were at issue in the case pursuant to N.C. Gen. Stat. §
7B-1104(6) (2005) (petitioner must “state . . . [f]acts that aresufficient to warrant a determination that one or more of the
grounds for terminating parental rights exist.”).
Father argues that, because the petition only conclusively
averred that father neglected J.M.P., the trial court lacked
subject matter jurisdiction to adjudicate the petition. In making
this argument, father relies heavily on In re Quevedo, 106 N.C.
App. 574, 419 S.E.2d 158 (1992), and In Re Hardesty, 150 N.C. App.
380, 563 S.E.2d 79 (2002). However, unlike the circumstances in
those cases, the record here is devoid of any indication that
father moved to dismiss the petition to terminate parental rights
for failure to state a claim in accordance with N.C. Gen. Stat. §
1A-1, Rules 12(b)(6) and/or 12(c) (2005). Moreover, father cites
no authority that petitioner's failure to comply with G.S. § 7B-
1104(6) divests the trial court of subject matter jurisdiction, and
we find none. We therefore reject the argument that the trial
court lacked jurisdiction to adjudicate the petition.
In light of the foregoing, we need not address father's
remaining arguments. On remand, it is within the discretion of the
trial court whether to receive additional evidence.
Reversed and remanded.
Chief Judge MARTIN and Judge JACKSON concur.
Report per Rule 30(e).
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