An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 7 November 2006
IN THE MATTER OF:
F.G. Durham County
No. 04 TPR 40
Appeal by respondent father from order entered 28 September
2005 by Judge James T. Hill in Durham County District Court. Heard
in the Court of Appeals 11 October 2006.
Woodrena Baker-Harrell, for petitioner mother-appellee.
Susan J. Hall, for respondent-appellant.
L.G. (respondent) appeals from order entered terminating his
parental rights to his minor child, F.G. We vacate the trial
court's order and remand for further proceedings consistent with
A. Respondent's Evidence
Respondent is the father of F.G., who is five years old.
Respondent and F.G.'s mother (petitioner) never married, but
lived together in Texas, where F.G. was born. Petitioner and
respondent separated in February 2002. Respondent offered to pay
child support as long as petitioner and F.G. remained in Texas.
After the parties separated, petitioner moved to North Carolina.
Respondent testified he attempted to make child support payments
after petitioner and F.G. moved to North Carolina. Respondenttestified he sent checks to petitioner and offered to establish a
bank account in F.G.'s name. Respondent was unable to open the
bank account because petitioner refused to provide F.G.'s social
security number to him.
Respondent sent four checks to petitioner, each for $150.00.
Two checks were sent on 15 April 2002, one on 20 May 2002, and one
on 14 June 2002. Respondent testified that he sent checks to pay
other bills, but the checks sent to petitioner were close in
sequence. The check numbers were 318, 319, 320, and 322.
Respondent also testified he sent clothing, toys, and gave
petitioner one hundred dollars cash for F.G.'s support. Petitioner
never cashed the checks and respondent testified petitioner had
told him F.G. did not need anything from respondent. Respondent
never pursued paying child support through a court order.
Respondent contacted petitioner in July 2002 and sought
visitation with F.G. Respondent testified that he visited F.G. in
North Carolina twice while he continued to live in Texas.
Respondent moved to North Carolina in April 2003. Respondent
did not know the address for petitioner and F.G. because she had
moved to a new location. Respondent contacted petitioner's brother
to locate petitioner's telephone number, but her brother refused to
provide respondent with petitioner's telephone number.
Respondent eventually received petitioner's telephone number
from her sister. With the help of a friend, respondent used
petitioner's telephone number in a computer search and located
petitioner's address. Respondent drove to petitioner's home andwatched F.G., while he played in the front yard. Respondent did
not request visitation at that time because he did not want to
create problems for petitioner.
The last contact respondent had with F.G. was a telephone call
in November 2004. During the conversation, F.G. told respondent
that he was not his father. Respondent did not seek assistance in
obtaining visitation before or after the petition to terminate his
parental rights was filed.
Respondent and a girlfriend have established a relationship
for two years and plan to marry. Respondent has one child from his
relationship with his girlfriend and is expecting a second child.
Respondent has also had a steady construction job in North Carolina
for the last three years. Respondent testified that he did not
want his parental rights to F.G. terminated.
B. Petitioner's Evidence
Petitioner testified respondent was a violent person.
Petitioner described an incident where respondent tried to hit her
when she was pregnant and actually did hit her when F.G. was a
baby. Petitioner had accused respondent of cheating on her.
Petitioner also testified that she never tried to keep
respondent away from F.G. Petitioner stated that she never knew
where respondent was living because he was always moving so she
could not call him and tell him about the baby. Petitioner felt
the need to terminate respondent's parental rights because
respondent would not be a good father and had a violent temper.Respondent denied he had committed any acts of domestic violence
A petition for termination of parental rights was filed on 4
August 2004. On 7 July 2005, a termination hearing was conducted.
The trial court's brief order concluded solely: (1) the trial
court has jurisdiction over the subject matter and the parties and
(2) it is in the best interest of F.G. to terminate respondent's
parental rights. Respondent appeals.
Respondent argues the trial court: (1) erred by failing to
make appropriate conclusions of law pursuant to N.C. Gen. Stat. .
7B-1109 and N.C. Gen. Stat. . 1A-1, Rule 52; (2) erred by
concluding it was in the best interest of F.G. to terminate his
parental rights; (3) lacked subject matter jurisdiction; and (4)
erred by failing to enter its order within thirty days pursuant to
N.C. Gen. Stat. . 7B-1109 and N.C. Gen. Stat. . 7B-1110.
III. Standard of Review
A proceeding to terminate parental rights is a
two step process with an adjudicatory stage
and a dispositional stage. A different
standard of review applies to each stage. In
the adjudicatory stage, the burden is on the
petitioner to prove by clear, cogent, and
convincing evidence that one of the grounds
for termination of parental rights set forth
in N.C. Gen. Stat. § 7B-1111(a) exists. The
standard for appellate review is whether the
trial court's findings of fact are supported
by clear, cogent, and convincing evidence and
whether those findings of fact support its
conclusions of law. Clear, cogent, and
convincing describes an evidentiary standard
stricter than a preponderance of the evidence,
but less stringent than proof beyond a
If the petitioner meets its burden of proving
at least one ground for termination of
parental rights exists under N.C. Gen. Stat. §
7B-1111(a), the court proceeds to the
dispositional phase and determines whether
termination of parental rights is in the best
interests of the child. The standard of
review of the dispositional stage is whether
the trial court abused its discretion in
terminating parental rights.
In re C.C., 173 N.C. App. 375, 380-81, 618 S.E.2d 813, 817 (2005)
(internal quotations and citations omitted).
IV. Conclusions of Law
Respondent argues the trial court failed to make appropriate
conclusions of law to support its decretal ruling that any and all
parental rights that the father, [respondent] has as the parent of
F.G. are hereby terminated. We agree.
N.C. Gen. Stat. § 7B-1109(e) (2005) states in relevant part
that in terminating parental rights, The court shall take
evidence, find the facts, and shall 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-1111 (2005) states the grounds
upon which the court, upon a finding of one or more of the grounds,
may terminate someone's parental rights.
N.C. Gen. Stat. § 1A-1, Rule 52 (2005) states, 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 and direct the entry of the appropriate
judgment. (Emphasis supplied). Under our rules, where a case is
tried before a court without a jury, findings of fact andconclusions of law sufficient to support a judgment are essential
parts of the decision making process. Girard Trust Bank v.
Easton, 12 N.C. App. 153, 155, 182 S.E.2d 645, 646, cert. denied,
279 N.C. 393, 183 S.E.2d 245 (1971). This Court has stated:
[T]he trial court is required to find the
facts specially and state separately its
conclusions of law thereon and direct the
entry of appropriate judgment. The trial
court is required to find specific ultimate
facts to support the judgment, and the facts
found must be sufficient for the appellate
court to determine that the judgment is
adequately supported by competent evidence. 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, 156-57, 231 S.E.2d 26,
28-29 (1977) (emphasis supplied) (internal citations and quotations
In order to terminate respondent's parental rights, the trial
court had to find as fact and conclude as a matter of law one of
the enumerated reasons existed as set out in N.C. Gen. Stat. § 7B-
1111. The trial court made only two conclusions of law in its
order: (1) the trial court has jurisdiction over the subject
matter and the parties and (2) it is in the best interest of F.G.
to terminate respondent's parental rights. Neither of these
conclusions state that any of the grounds enumerated for
terminating respondent's parental rights existed. N.C. Gen. Stat.
§ 7B-1111. None of the trial court's findings of fact state a ground for
terminating respondent's parental rights. The trial court found as
1. The minor child, F.G., was born . . . in
Houston, Texas but currently lives in Durham
County, North Carolina.
2. The name of the child's mother is
[petitioner] whose current address is . . . .
3. The child has been in the care, custody and
control of [petitioner] since birth.
Petitioner and child lived at . . . .
4. Prior to February 2004, the mother and
child lived at . . . for one year.
5. [Respondent] is listed on the birth
certificate as being the father of the minor
child, as named by [petitioner].
6. [Respondent] was served with the summons
and petition to terminate parental rights by
the Sheriff's Department of Wake County on 19
7. The minor child was born out of wedlock.
8. That [respondent] has not established
paternity judicially or by affidavit which has
been filed in a central registry maintained by
the Department of Human Resources.
9. That [respondent] has not legitimated the
child pursuant to the provisions of North
Carolina General Statute Section 49-10 or
filed a petition for the specific purpose of
legitimizing the minor child.
10. That [respondent] has not legitimated the
child by marriage to [petitioner] . . . .
11. That [respondent] has paid only $300 for
support of the minor child since the child's
birth. That amount was inadequate to support
12. That [respondent] has abandoned the child
in that he has known where the child has livedfor the past 2 years but made no effort to
contact the child or seek visitation.
13. It is in the best interest of the child
that [respondent's] parental rights are
terminated and the minor child remains in the
physical and legal custody of [petitioner].
Even if we interpreted these findings of fact as conclusions of
law, the trial court's order does not state a ground for
terminating respondent's parental rights under N.C. Gen. Stat. §
7B-1111. The trial court's order lacks a finding that petitioner
has not provided substantial financial support or consistent care
with respect to the juvenile and mother. N.C. Gen. Stat. § 7B-
The trial court's order is vacated and the case is remanded
for further proceedings consistent with this opinion. See
Montgomery, 32 N.C. App. at 158, 231 S.E.2d at 29 (Since the
judgment appealed from does not contain sufficient findings of fact
and no conclusions of law to support its dispositive provisions,
the judgment is vacated, and this cause is remanded for proceedings
consistent with this decision.)
The trial court's order does not contain conclusions of law to
support its findings of fact. The trial court's failure to
conclude one of the grounds enumerated in N.C. Gen. Stat. § 7B-1111
existed to terminate respondent's parental rights requires its
order to be vacated. The trial court's order is vacated and this
case is remanded to the trial court for further proceedingsconsistent with this opinion. In light of our holding, we do not
address respondent's remaining assignments of error.
Vacated and Remanded.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
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