IN THE MATTER OF M.G.M. Sampson County
No. 02 J 73
Philip E. Williams for petitioner-appellee Sudie R.
The Turrentine Law Group, PLLC, by Karlene Scott-Turrentine,
for respondent-appellant Manuel M.
Isaac Cortes, Jr., for Guardian ad Litem.
CALABRIA, Judge.
Manuel M. (“respondent”) appeals from an order of the trial
court, terminating his parental rights to M.G.M. (“the minor
child”). We vacate the order and remand to the trial court.
Respondent and Sheena W. (“Sheena W.”) are the biological
parents of the minor child. At the time of the minor child's
conception, respondent and Sheena W. were teenagers, and shortly
after the minor child's birth in September 2000, respondent was
convicted of forgery, larceny, and disorderly conduct. Based on
these convictions, respondent was incarcerated from 13 December
2000 until 1 February 2003, and it is undisputed that since the
birth of the minor child, Sudie R. (“petitioner”), the minor
child's maternal grandmother, has provided primary care for him. In a 24 April 2001 order, Sheena W. transferred her custodial
rights to petitioner. In an 8 May 2001 order of the Johnston
County District Court, petitioner was granted exclusive care,
custody, and control of the minor child, and respondent's contact
with the minor child was limited to “terms and conditions . . .
dictated by [petitioner].” Respondent never sought to modify the
order.
Sheena W. executed a consent to the adoption of the minor
child by petitioner. Since respondent refused to consent to
adoption, petitioner filed a petition to terminate respondent's
parental rights on 8 October 2002. Petitioner voluntarily
dismissed the petition on 1 May 2003 and then refiled her petition
on 19 February 2004 in Sampson County District Court. The petition
alleged grounds existed to terminate respondent's parental rights
based on neglect, willfully leaving the minor child in placement
outside the home for more than twelve months, and willfully
abandoning the minor child for at least six consecutive months.
The Sampson County District Court subsequently heard this matter
and made, inter alia, the following findings of fact:
9. Between the birth of the child . . . and
the incarceration of [respondent] on December
13, 2000 [respondent]:
A. Neglected the welfare of the minor child
by not providing proper care or supervision
for the child;
B. Consumed illegal drugs;
C. Committed illegal acts;
D. Failed to provide financial support for
the minor child;
E. Failed to provide care for the minor
child; and
F. Failed to have regular contact with the
minor child. G. This constitutes a statutory ground for
termination of parental rights and has been
proven by clear and convincing evidence.
10. The court fails to find that any other
grounds for termination have been proven by
clear and convincing evidence.
11. The petitioner is the maternal grandmother
of the child, and the child has resided in the
petitioner's home since birth.
12. The petitioner has consistently provided
the child with a loving, appropriate home
environment.
13. The petitioner and her husband have acted
in the role of mother and father throughout
the life of the child, and they are the only
parental figures known by the child.
14. [Respondent] was incarcerated from
December 13, 2000 until February 1, 2003.
. . .
16. [Respondent] did not see the child from
June, 2001 until he was released from jail on
February 1, 2003.
17. The petitioner obtained legal custody of
the minor child pursuant to a Johnston County
court order dated May 8, 2001.
A. Said order provided contact between the
child and [respondent] “only in the sole
discretion of [petitioner] and according to
such terms and conditions as are dictated by
[petitioner].”
B. In awarding custody to the petitioner, the
court's findings included the following: “that
[respondent] had an extensive criminal record
and was then incarcerated; that prior to going
to jail [respondent] had little contact with
the child and provided no financial support;
that [respondent] had a history of illegal
drug use; that [respondent's] actions
constituted neglect of the minor child; that
[respondent] was an unfit parent and was
unsuitable to have custody of his child; and
that [respondent] had forfeited his
constitutionally protected status as a parent
by acting in a manner inconsistent with his
parental rights and duties.” 18. Subsequent to his release from prison,
[respondent] has made significant progress in
stabilizing and improving his own life.
A. He has not resumed use of illegal drugs or
involvement in criminal activity;
B. He has worked hard to maintain employment,
at times holding two jobs at one time, and is
considered a good employee by his employer;
and
C. He has married, and although he is
currently separated from his wife, is working
to resolve problems with his spouse.
19. Visits between [respondent] and [the
minor child] after his release from
incarceration on February 1, 2003 have
typically lasted an hour or so, and have
occurred on a sporadic basis, often ending
with an argument or disagreement between
[respondent] and petitioner.
. . .
21. The frequency of the disputes with
petitioner has caused [respondent] to visit
with the minor child less, sometimes with
several months passing between visits.
. . .
26. [Respondent] has allowed the disagreements
between himself and the petitioner to continue
without resolution, not only failing to take
affirmative legal action to expand his
relationship with [the minor child], but also
acquiescing to a belief that he should see the
child less in order to minimize conflict with
the petitioner.
27. The effect of [respondent's] inaction has
been to maintain his role in the child's life
as one of irrelevance and unimportance.
28. Rather than developing a relationship
with the child over the last two years that is
beneficial and meaningful to the child, his
contact with the child, at best, has been of
little value to the child's best interests,
and at worst, has been in the nature of a
disturbance to the normal routine of the
child.
. . .
30. [Respondent's] failure to take meaningful
action as described above has continued over
an extended period of time, over two years
having passed since his release from prison,
and raises the concern as to whether he has
sufficient ability or desire to ever make
meaningful progress with his son in the
future.
Based on these and related findings of fact, the trial court
concluded in the adjudicatory phase that grounds existed to
terminate respondent's parental rights based on neglect. See N.C.
Gen. Stat. § 7B-1111(a)(1) (2005). At the dispositional phase, the
trial court determined termination of respondent's parental rights
was in the best interests of the minor child. See N.C. Gen. Stat.
§ 7B-1110 (2005). From the order terminating his parental rights,
respondent appeals.
We initially address respondent's argument that the trial
court erred by failing to bifurcate the proceeding into both an
adjudicatory and dispositional phase. Termination of parental
rights is a two-phase process comprised of the adjudicatory phase
and the dispositional phase. In re Blackburn, 142 N.C. App. 607,
610, 543 S.E.2d 906, 908 (2001). In the adjudicatory phase, the
trial court determines if the petitioner has proven one or more
grounds for termination of parental rights by clear and convincing
evidence. N.C. Gen. Stat. § 7B-1111 (2005). See also In re
Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908. If the
petitioner meets the burden of proving that one or more statutory
grounds for termination exists, the trial court then moves to the
dispositional phase where it must consider if termination is in thechild's best interests. N.C. Gen. Stat. § 7B-1110 (2005). See
also In re Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908.
This Court has held that a trial court does not err in
conducting both the adjudicatory and the dispositional stages in
the same hearing as long as the trial court applies the appropriate
legal standards. In re White, 81 N.C. App. 82, 85, 344 S.E.2d 36,
38 (1986). In the case sub judice, during the adjudicatory phase,
the trial court specifically stated that its findings were based on
clear, cogent, and convincing evidence. Then, during the
dispositional phase, the trial court determined that termination of
respondent's parental rights was in the minor child's best
interests. Accordingly, the trial court applied the appropriate
legal standards in each phase of the hearing, and this assignment
of error is without merit.
Respondent next argues that the trial court erred by
concluding that neglect existed based solely on respondent's
actions between the birth of the minor child and respondent's
incarceration on 13 December 2000. Pursuant to N.C. Gen. Stat. §
7B-1111(a)(1) (2005), one basis for termination of parental rights
is upon a determination that “[t]he parent has . . . neglected the
juvenile.” A parent has neglected the juvenile if the trial court
finds the juvenile is a “neglected juvenile” within the meaning of
G.S. 7B-101(15) (2005). N.C. Gen. Stat. § 7B-1111(a)(1). North
Carolina General Statutes § 7B-101(15) defines a “neglected
juvenile” as:
A juvenile who does not receive proper care,
supervision, or discipline from the juvenile'sparent, guardian, custodian, or caretaker; or
who has been abandoned; or who is not provided
necessary medical care; or who is not provided
necessary remedial care; or who lives in an
environment injurious to the juvenile's
welfare; or who has been placed for care or
adoption in violation of law. . . .
Id. In interpreting this statute, we have held, “[d]uring a
proceeding to terminate parental rights, the trial court must admit
and consider evidence, find facts, make conclusions and resolve the
ultimate issue of whether neglect authorizing termination of
parental rights under [N.C. Gen. Stat. § 7B-1111 (a)(1)] and [N.C.
Gen. Stat. § 7B-101 (15)] is present at that time.” In re Beasley,
147 N.C. App. 399, 404, 555 S.E.2d 643, 647 (2001)(citations
omitted)(emphasis added).
In this case, the trial court concluded,
2. Between the birth of the child . . . and
the incarceration of [respondent] on December
13, 2000 the father neglected the welfare of
his minor child by not providing proper care
or supervision for the child. During said
period of time, [respondent] consumed illegal
drugs, committed illegal acts, failed to
provide financial support [to] the minor
child, failed to provide care for the minor
child, and failed to have regular contact with
the minor child. This constitutes a statutory
ground for termination of parental rights and
has been proven by clear and convincing
evidence, pursuant to North Carolina General
Statute 7B-1111 (a)(1), et. seq.
This Court considers challenged conclusions of law de novo. In re
K.D.L., __ N.C. App. __, __, 627 S.E.2d 221, 222 (2006) (citation
omitted). Upon a de novo review of this conclusion of law, we hold
that the conclusion relates solely to a time period in the past and
fails to resolve the ultimate issue of whether neglect was presentat the time of the hearing. See In re Beasley, 147 N.C. App. at
404, 55 S.E.2d at 647. Thus, because the trial court's conclusion
is insufficient to establish that a statutory ground for
termination of parental rights exists under N.C. Gen. Stat. § 7B-
1111, we vacate the order and remand to the trial court to
determine the ultimate issue: whether neglect existed at the time
of the hearing.
Since we have remanded this matter to the trial court for a
new order, we need not address respondent's other arguments on
appeal.
Vacated and remanded.
Judges GEER and JACKSON concur.
Report per Rule 30(e).
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