Appeal by respondent from order terminating parental rights
entered 17 February 2006 by Judge Sandra Criner in District Court,
Pender County. Heard in the Court of Appeals 24 January 2007.
Regina Floyd-Davis for petitioner-appellee.
Sophie W. Hosford for respondent-appellant.
STROUD, Judge.
Respondent Michael W. appeals the trial court order
terminating his parental rights to two minor boys, C.W. and J.W.
C.W. was born on 8 April 1995 and J.W. was born on 15 April 1998.
Respondent is the biological father of both children.
I. Background
Between May 2001 and July 2003, respondent was on probation
for a conviction of taking indecent liberties with a child. On 27
July 2003, respondent's probation was revoked and he was re-
incarcerated. At that time, C.W. and J.W. lived at the Masonic
Home for Children (Masonic Home) in Oxford, N.C. The children had
been voluntarily placed in the Masonic Home by their mother, Kelly
W., who was financially unable to provide food and housing for
them.
In August 2003, the Masonic Home notified the Pender County
Department of Social Services (DSS) that it had lost contact with
the children's mother. On 15 September 2003, the children were
placed in the nonsecure custody of DSS and DSS chose the Masonic
Home as a foster placement for the children.
On 31 October 2003, an adjudication hearing was held in
District Court, Pender County, at which the children's mother
stipulated that C.W. and J.W. are dependent children within the
meaning of N.C. Gen. Stat. § 7B-101(9). A dependant child is a
child who is “in need of assistance or placement because the
juvenile has no parent, guardian, or custodian responsible for the
juvenile's care or supervision or whose parent, guardian, or
custodian is unable to provide for the care or supervision and
lacks an appropriate alternative child care arrangement.” N.C.
Gen. Stat. § 7B-101(9) (2005). DSS recommended that the primary
plan should be to reunify the children with their mother. On 30January 2004, the trial court entered orders of adjudication in
which the court found the same.
Although the children's mother entered into a case plan with
DSS on 30 September 2003, she did not complete the plan, and on 23
July 2004 DSS requested that the trial court change the primary
plan from reunification to adoption. Thereafter, the children's
mother voluntarily relinquished her parental rights to both boys.
There is no evidence that DSS contacted respondent before
seeking to cease reunification efforts with the children's mother
and no evidence that DSS entered into a case plan with respondent.
Respondent requested appointed counsel and also requested to be
present at the subsequent permanency planning hearing, which was
held on 31 March 2005. Following the hearing, the trial court
ordered that the permanent plan for C.W. and J.W. would be
adoption. In a later permanency planning report to the court dated
22 July 2005, DSS stated that respondent “has been very vocal about
the agency intervention. He states [that] he should have rights to
his children.”
The history provided above is documented in previously filed
DSS reports and court orders in this case. The trial court took
judicial notice of these previously filed reports and orders in the
order terminating respondent's parental rights.
II. Termination Hearing
On 28 July 2005, DSS filed a petition to terminate
respondent's parental rights. Respondent did not answer the
petition but did file a
pro se motion to dismiss, which wassubsequently denied. The trial court held a termination hearing
on 16 December 2005, at which respondent was present and
represented by counsel.
DSS presented evidence during the termination hearing to show
that C.W. has been living at the Masonic Home since 2000 and that
J.W. has been living there since 2001. When C.W. and J.W. were
voluntarily placed in the Masonic Home, they were five years old
and three years old respectively. Both children were placed in the
Masonic Home by their mother without prior consultation with
respondent, who learned of each child's placement after the fact.
In 1998, respondent served a seventy-five day sentence for
DWI. During this time, both children were removed from their
parents' home by DSS in response to a report that C.W. had a
suspicious bruise. The children were returned to their parents'
home by DSS two and one half months later. DSS did not present any
evidence to show that the 1998 removal resulted in an adjudication
of abuse, neglect, or dependency, and the record is silent on this
point.
Respondent was also incarcerated from June 2000 to May 2001
following a conviction for taking indecent liberties with his
niece, who was a minor. He was released on probation in May 2001.
Respondent testified during the termination hearing that the
superior court order setting the terms of his probation prevented
him from having contact with C.W. and J.W. until he completed a
mental evaluation. There is some evidence from the children's
mother, in the form of a notation on J.W.'s psychologicalevaluation, that respondent would have been permitted to visit the
children with the supervision of his pastor. The record does not
show whether respondent ever completed the necessary mental
evaluation; however, respondent did not visit the children at the
Masonic Home or make other housing arrangements for the children
while free on probation. Although C.W. and J.W. lived at the
Masonic Home during this time, their placement in the home was a
voluntary decision made by their mother and DSS did not have legal
or physical custody of the children.
Respondent's probation was revoked on 27 July 2003 and he was
re-incarcerated. DSS was awarded nonsecure custody of C.W. and
J.W. shortly thereafter. During his incarceration, respondent sent
or arranged for the sending of birthday and Christmas cards to the
children. Typically, each card contained $5.00. Respondent also
requested that his parents, who live in Iowa, be considered as a
relative placement for the children. After contacting respondent's
parents, DSS concluded that they were not a suitable placement.
Respondent testified at the termination hearing that his parents
were financially unable to care for C.W. and J.W. At the time of
the termination hearing, respondent's projected release date from
prison was in May 2006.
Following the hearing, the trial court entered an order
terminating respondent's parental rights. In its order, the trial
court found three grounds for termination: (1) respondent
neglected C.W. and J.W., (2) respondent willfully left C.W. and
J.W. in foster care for more than twelve months without makingreasonable progress under the circumstances toward correcting the
conditions that led to their removal from the home, and (3)
respondent willfully abandoned C.W. and J.W. These grounds are set
forth by statute in N.C. Gen. Stat. § 7B-1111(1), (2) and (7)
(2005) respectively. In addition, the trial court concluded that
termination of respondent's parental rights is in the children's
best interests pursuant to N.C. Gen. Stat. § 7B-1110 (2005). The
termination order was entered on 17 February 2006, sixty days after
the termination hearing.
For the reasons stated below, we hold that DSS failed to
present sufficient evidence of any statutory ground for termination
alleged in its petition. Accordingly, we reverse the trial court
order terminating respondent's parental rights.
III. Standard of Review
N.C. Gen. Stat. § 7B-1111 lists nine grounds for which a trial
court may terminate a party's parental rights. N.C. Gen. Stat. §
7B-1111. DSS, or any other party identified in N.C. Gen. Stat. §
7B-1103 (2005), may initiate a proceeding to terminate parental
rights by filing a petition in district court. N.C. Gen. Stat. §
7B-1103. The petition must allege “[f]acts that are sufficient to
warrant a determination that one or more of the grounds for
terminating parental rights [listed in N.C. Gen. Stat. § 7B-1111]
exist.” N.C. Gen. Stat. § 7B-1104(6) (2005). A termination
proceeding is conducted in two stages: adjudication and
disposition. N.C. Gen. Stat. §§ 7B-1109, 1110 (2005). The
petitioner carries the burden of proof during adjudication,
In reMitchell, 148 N.C. App. 483, 488, 559 S.E.2d 237, 241 (2002), but
there is no burden of proof on either party during disposition,
In
re Dexter, 147 N.C. App. 110, 114, 553 S.E.2d 922, 924 (2001).
During adjudication, the trial court must determine whether
the petitioner has presented clear, cogent, and convincing evidence
of the existence of one or more of the grounds for termination set
forth in N.C. Gen. Stat. § 7B-1111. If the court finds at least
one ground to exist, then the proceeding continues to disposition
phase.
See In re Carr, 116 N.C. App. 403, 407, 448 S.E.2d 299, 302
(1994) (holding that “the court exercises its discretion in the
dispositional stage only
after the court has found that there is
clear and convincing evidence of one of the statutory grounds for
terminating parental rights during the adjudicatory stage”).
During disposition, the trial court must determine whether
terminating the respondent's parental rights is in the child's best
interests. N.C. Gen. Stat. § 7B-1110. The court's decision
regarding the best interests of the child represents an exercise of
the court's discretion.
In re Montgomery, 311 N.C. 101, 316 S.E.2d
246 (1984).
On appeal, this Court considers whether the trial court's
findings of fact are based on clear, cogent, and convincing
evidence and whether those findings support the trial court's
conclusion that grounds for termination exist pursuant to N.C. Gen.
Stat. § 7B-1111.
In re Oghenekevebe, 123 N.C. App. 434, 436, 473
S.E.2d 393, 395 (1996). This standard of review directly
corresponds to the adjudication phase of the terminationproceeding. This Court also considers whether the trial court
abused its discretion in determining that it was in the child's
best interests to terminate the respondent's parental rights.
In
re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002).
This standard of review directly corresponds to the disposition
phase of the termination proceeding.
IV. Neglect
[1] Respondent assigns error to the trial court's conclusion
that he neglected C.W. and J.W. We agree that DSS did not present
clear, cogent, and convincing evidence that this ground for
termination exists.
N.C. Gen. Stat. § 7B-1111(1) provides that the trial court may
terminate a party's parental rights upon a finding that “[t]he
parent has abused or neglected the juvenile.” For purposes of N.C.
Gen. Stat. § 7B-1111(1), a neglected child is a child
who does not receive proper care, supervision,
or discipline from the juvenile's parent,
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. In determining
whether a juvenile is a neglected juvenile, it
is relevant whether that juvenile lives in a
home where another juvenile has died as a
result of suspected abuse or neglect or lives
in a home where another juvenile has been
subjected to abuse or neglect by an adult who
regularly lives in the home.
N.C. Gen. Stat. § 7B-101(15) (2005). To establish neglect as a
ground for termination of parental rights, the petitioner must
present clear, cogent, and convincing evidence that (1) the childis neglected as described in N.C. Gen. Stat. § 7B-101(15) above,
and (2) the child “has sustained some physical, mental, or
emotional impairment . . . or there is substantial risk of such
impairment as a consequence of the neglect.”
In re Beasley, 147
N.C. App. 399, 403, 555 S.E.2d 643, 646 (2001) (internal citation
and quotation omitted). Neglect must exist at the time of the
termination hearing, or if the parent has been separated from the
child for an extended period of time, the petitioner must show that
the parent has neglected the child in the past and that the parent
is likely to neglect the child in the future.
In re Ballard, 311
N.C. 708, 714-15, 319 S.E.2d 227, 231-32 (1984) (“We hold that
evidence of neglect by a parent prior to losing custody of a
child_-including an adjudication of such neglect_-is admissible in
subsequent proceedings to terminate parental rights” but “[t]he
trial court must also consider any evidence of changed conditions
in light of the evidence of prior neglect and the probability of a
repetition of neglect.”).
A parent's incarceration may be relevant to whether his child
is neglected; however, “'[i]ncarceration, standing alone, is
neither a sword nor a shield in a termination of parental rights
decision.'”
In re P.L.P., 173 N.C. App. 1, 10, 618 S.E.2d 241, 247
(2005) (quoting
In re Yocum, 158 N.C. App. 198, 207-08, 580 S.E.2d
399, 405 (2003) (Tyson, J. dissenting)),
aff'd per curiam, 360 N.C.
360, 625 S.E.2d 779 (2006). For example, in
In re P.L.P., this
Court affirmed a trial court order terminating parental rights
based on neglect when the trial court found that the incarceratedrespondent “(1) 'could have written' but did not do so; (2) 'made
no efforts to provide anything for the minor child'; (3) 'has not
provided any love, nurtur[ing] or support for the minor child'; and
(4) 'would continue to neglect the minor child if the child was
placed in his care[.]'” 173 N.C. App. at 10-11, 618 S.E.2d at 247
(alteration in original). In
In re P.L.P., the trial court had
also entered two previous adjudication orders in which the court
concluded that P.L.P. was neglected.
Id. at 3-4, 618 S.E.2d at
243.
Similarly, in
In re Bradshaw, this Court affirmed a trial
court order terminating parental rights based on neglect when the
court found that the incarcerated respondent “neither provided
support for the minor child nor sought any personal contact with or
attempted to convey love and affection for the minor child.” 160
N.C. App. 677, 682, 587 S.E.2d 83, 86 (2003). In both
In re P.L.P.
and
In re Bradshaw, this Court determined that the trial court's
findings of fact were supported by clear, cogent, and convincing
evidence, and that these findings were sufficient to support the
trial court's conclusion that neglect existed as a ground for
termination pursuant to N.C. Gen. Stat. § 7B-1111(1).
In re
P.L.P., 173 N.C. App. at 13, 618 S.E.2d at 248;
In re Bradshaw, 160
N.C. App. at 682, 587 S.E.2d at 87.
However, in
In re Shermer, 156 N.C. App. 281, 288, 576 S.E.2d
403, 408 (2003), this Court reversed an order terminating a
father's parental rights based on neglect despite the trial court's
finding that the father “had failed to complete various parts ofhis case plan” by failing to “maintain employment,” failing to
“contact[] the social worker once per week,” failing to
“participat[e] in therapy sessions” with his children, failing to
“pay child support or establish a support obligation for the
children,” failing to “attend[] parenting classes,” and failing to
complete “a drug and alcohol assessment.” This Court concluded
that the trial court's finding was not supported by “clear, cogent,
and convincing evidence of neglect or evidence that neglect could
reoccur” because DSS had entered into the case plan with the
father, who was recently released from prison, less than two months
before the termination hearing.
In re Shermer, 156 N.C. App. at
288, 576 S.E.2d at 408.
In re P.L.P,
In re Bradshaw, and
In re Shermer guide our
analysis in the case
sub judice. Here, there is no previous
adjudication of neglect; rather, C.W. and J.W. were voluntarily
placed in the Masonic Home by their mother to ensure that they
would receive proper care, supervision, and discipline. The
children came into DSS custody in September 2003 after the Masonic
Home lost contact with their mother. Thereafter, the mother
stipulated that C.W. and J.W. are dependent, meaning that neither
she nor respondent, who was incarcerated, were able to care for the
children and that they lacked suitable alternative child care.
Although DSS entered into a case plan with the children's mother,
DSS has never entered into a case plan with respondent.
The evidence presented by DSS shows that while C.W. and J.W.
have been in DSS custody, respondent has written letters to thechildren and sent them birthday and Christmas cards, including some
money. In its permanency planning report to the court dated 22
July 2005, DSS stated that respondent “has been very consistent
with writing his children. He has not forgotten a birthday nor
Christmas.” On direct examination during the termination hearing,
the children's social worker testified that respondent “writes the
children” and that “on Christmas they each get a card_-on Christmas
and their birthdays and I think $5.00 is in each card each time.”
The social worker also testified that she had personally seen the
cards and money.
An affidavit filed by respondent's family members alleges that
DSS prevented respondent's letters from reaching the children,
stating:
Since [respondent] has been incarcerated he
has always tried to stay in contact with his
children. He has always asked us to send them
birthday and holiday cards from him. He has
written letters telling them he loves and
thinks about them all the time. He has never
received a reply. DSS informed us all
correspondence from [respondent] was thrown
away, but ours was given to the boys.
On cross-examination, respondent testified that he tried to
find out why the children were not receiving his letters.
I wrote constantly. It never surprised me
that I never did get a response because of the
situation that they were in. I found out at
one point that my letters weren't even getting
to them. So I wrote to Masonic Home about
that to see why. They said DSS told them that
the children were not to get my letters. That
lasted up until the filing of this petition.
But through the whole time I wrote them anyway
just hoping that somehow or another the
letters would get through.
Although the social worker explained that respondent's
“correspondence had to be monitored by [the children's] therapist”
and that the children “could not receive the mail and read it
themselves,” DSS did not present any evidence that respondent's
letters were disturbing to the children or were otherwise
inappropriate. It appears from the record that correspondence was
respondent's only means of contact with the children while they
were in DSS custody, as the social worker testified that DSS policy
does not permit visitation with an incarcerated parent.
Between May 2001 and July 2003 respondent was on probation;
however, respondent testified that the terms of his probation
prohibited him from having contact with the children until he
received a mental evaluation. During this time, the children
resided in the Masonic Home, but were not in DSS custody. There is
some evidence from the children's mother, in the form of a notation
on J.W.'s psychological evaluation, that respondent would have been
permitted to visit the children in the Masonic Home with the
supervision of his pastor. Respondent's actual probation order is
not in the record on appeal and there is no further evidence on
this point.
Between June 2000 and May 2001, respondent was incarcerated.
Respondent testified that, up until this incarceration, he cared
for the children and enjoyed spending time with them. In
particular, respondent testified that he worked at a factory in
Burgaw and that he provided a home for the family. With respect to
C.W., respondent testified “[f]rom the time that [he] was bornuntil the very last night I saw him, I was with that boy every day
of my life,” adding, “I took that boy wherever I was going.”
Based on the evidence, the trial court made the following
relevant findings of fact:
7. That [respondent] was aware at all
times of the placement of C.W. and J.W. at the
Masonic Home for Children in Oxford. They
remained in said placement from the time he
was paroled in 2001, throughout the period of
his release and since his re-incarceration.
The record is void of any interaction between
[respondent] and his sons via letters,
telephone or visits during their placement at
the Masonic Home.
8. That the Psychological Evaluation
completed on [the children's mother] reveals a
lack of stability amongst (sic) the family
during the period of time [respondent] resided
with [the children's mother] and the
juveniles. In 1999, respondent “lost his
employment following 'dirty' testing on a
random drug screen and initiated further
deterioration of their household.” [The
children's mother] further described
respondent as “an angry alcoholic who was in
and out of jail for drunkenness and, finally,
for a child molestation conviction.” In 2001,
reunification of [the children's mother] and
respondent led to the “continued dysfunction
in the relationship which would foster other
separations.” During said period, respondent
failed to fulfill his probationary obligations
of obtaining counseling and “he remained on
the run for a period of weeks before being
caught in July 2003.”
. . . .
13. That [respondent] has been present
at review hearings regarding the Juveniles,
and has always been represented by counsel.
Paternal relatives requested for consideration
of placement by the [r]espondent were
contacted; no relative indicated a willingness
or ability to provide a permanent home for
C.W. and J.W.. The [r]espondent made no other
requests for consideration of non-relatives.
14. The [r]espondent has not legitimated
the Juveniles pursuant to N.C.S. Section 49-10
or by marriage to the mother of the Juveniles.
He has never provided substantial financial
support or consistent care with respect to the
Juveniles and their mother.
15. That the Court takes judicial notice
of all of the Orders and court reports as set
forth in the Pender County Juveniles
proceeding hearing . . . titled “In the Matter
of [C.W] and [J.W.].”
We conclude that significant portions of these findings of fact are
wholly unsupported by the evidence presented during the termination
proceeding.
In particular, there is
no evidence to support the trial
court's finding that “[t]he record is void of any interaction
between [respondent] and his sons via letters, telephone or visits
during their placement at the Masonic Home” or that respondent “has
not legitimated the Juveniles pursuant to N.C.S. Section 49-10 or
by marriage to the mother of the Juveniles.” To the contrary,
undisputed evidence shows respondent was very consistent in writing
the children and DSS concedes in its brief that, although C.W. was
born out of wedlock, respondent married the children's mother
shortly thereafter.
(See footnote 1)
J.W. was born during the marriage. It is
also undisputed that the children's mother did not tell respondent
she was placing C.W. and J.W. in the Masonic Home until after she
had already done so; thus, the trial court's finding that
respondent “was aware at all times of the placement of C.W. andJ.W. at the Masonic Home for Children at Oxford” is likewise
unsupported by the evidence.
Additionally, there is
no evidence to support finding of fact
number eight, which is a compilation of quoted statements
apparently made by the children's mother during a psychological
evaluation. DSS did not introduce the psychological evaluation
into evidence and did not call the children's mother as a witness.
Moreover, the psychological evaluation is not contained in the
record on appeal, and we find no mention of the document anywhere
except in the trial court order.
(See footnote 2)
The trial court's remaining findings of fact are insufficient
to support its conclusion that respondent neglected C.W. and J.W.
Accordingly, we hold that the trial court erred by terminating
respondent's parental rights on the ground of neglect.
IV. Failure to Make Reasonable Progress
[2] Respondent assigns error to the trial court's conclusion
that he willfully left C.W. and J.W. in foster care for more than
twelve months without making reasonable progress under the
circumstances toward correcting the conditions that led to their
removal from the home. We agree that DSS did not present clear,
cogent, and convincing evidence that this ground for termination
exists.
N.C. Gen. Stat. § 7B-1111(2) provides that the trial court may
terminate a party's parental rights upon a finding that
[t]he parent has willfully left the juvenile
in foster care or placement outside the home
for more than 12 months without showing to the
satisfaction of the court that
reasonable
progress under the circumstances has been made
in correcting those conditions which led to
the removal of the juvenile. Provided,
however, that no parental rights shall be
terminated for the sole reason that the
parents are unable to care for the juvenile on
account of their poverty.
(Emphasis added.) Leaving a child in foster care is willful when
a parent has “the ability to show reasonable progress, but [is]unwilling to make the effort.”
In re Fletcher, 148 N.C. App. 228,
235, 558 S.E.2d 498, 502 (2002). The relevant time period for
measuring “reasonable progress under the circumstances” begins
after “removal of the juvenile” from the home. N.C. Gen. Stat. §
7B-1111(2). A parent's incarceration is a “circumstance” that the
trial court must consider in determining whether the parent has
made “reasonable progress” toward “correcting those conditions
which led to the removal of the juvenile.”
See In re Shermer, 156
N.C. App. at 290, 576 S.E.2d at 409 (noting that “[b]ecause [the]
respondent [father] was incarcerated, there was little involvement
he could have beyond what he did_-write letters to [his sons] and
inform DSS that he did not want his rights terminated”). For
purposes of Chapter 7B, we understand “removal” to mean taken into
temporary custody pursuant to N.C. Gen. Stat. § 7B-500 (2005) or
nonsecure custody pursuant to N.C. Gen. Stat. § 7B-502 (2005).
In
In re Shermer, this Court held that a trial court's
findings of fact were insufficient to support termination of a
father's parental rights on this ground. 156 N.C. App. at 281, 576
S.E.2d at 403. In so doing, the Court applied a previous enactment
of N.C. Gen. Stat. § 7B-1111(2), which provided that the relevant
time period for measuring “reasonable progress” was the twelve
months immediately preceding the filing of a petition for
termination of parental rights.
Id.;
see also In re Pierce, 356
N.C. 68, 75, 565 S.E.2d 81, 86 (2002). The Court emphasized that
(1) the trial court “made no findings at all” as to the father's
progress, or lack there of, during the relevant twelve-month periodbefore the termination proceeding was filed; (2) the father had
been incarcerated during those twelve months; and (3) the father
had no involvement in the events which led to the child's removal
from the home. 156 N.C. App. at 289-90, 576 S.E.2d at 409. We
conclude that
In re Shermer is analogous to the case
sub judice.
Here, the trial court found:
12. That the [r]espondent . . . , has
willfully left [C.W. and J.W.] in foster care
or placement outside the home for more than 12
months without showing to the satisfaction of
the Court that reasonable progress under the
circumstances has been made in correcting
those conditions which led to the removal of
the Juveniles. During the period of time that
[respondent] was not incarcerated, he took no
action to reunite with his children and
provide a stable living environment for the
family. The children remained in the Masonic
Home for Children prior to his re-
incarceration for probation violation. As
part of his probation violation Order,
[r]espondent-father was ordered not to have
contact with his children and may have
contributed to his revocation by attempting
contact.
The trial court failed to make
any findings of fact specifically
related to respondent's progress after C.W. and J.W. were removed.
In fact, DSS never entered into a case plan against which the trial
court could measure respondent's progress.
(See footnote 3)
It is undisputed that respondent was incarcerated during the
entire period of removal preceding the filing of the petition, from
27 July 2003 to 28 July 2005. It is also undisputed that
respondent regularly wrote to C.W. and J.W. from prison, and when
respondent learned that his letters were not reaching the children,
respondent attempted to remedy the problem. During this time
respondent was “very vocal” in informing DSS that he desired
“rights to his children.”
Moreover, there is no evidence to support the trial court's
finding that respondent was ordered not to have contact with C.W.
and J.W. pursuant to a “Probation Violation Order.” All the
evidence presented during the termination hearing showed that the
restriction on contact was an original term of respondent's
probation. Likewise, DSS presented no evidence to support the
trial court finding that respondent “may have contributed to his
revocation by attempting contact.”
For these reasons we hold that the trial court's findings of
fact are insufficient to support its conclusion that respondent
willfully left C.W. and J.W. in foster care for more than twelve
months without making reasonable progress under the circumstances
toward correcting the conditions that led to their removal from the
home. In so doing, we also incorporate our earlier determination
that significant portions of the trial court's findings of fact
numbered seven, eight, thirteen, fourteen, and fifteen are
unsupported by clear, cogent, and convincing evidence. The trialcourt erred in terminating respondent's parental rights on this
ground.
VI. Abandonment
[3] Respondent assigns error to the trial court's conclusion
that he abandoned C.W. and J.W. In support of this assignment,
respondent emphasizes that DSS did not allege abandonment as a
ground for termination in its petition. We agree that the trial
court erred in terminating respondent's parental rights on this
ground.
A petition for termination of parental rights must allege
“[f]acts that are sufficient to warrant a determination that one or
more of the grounds for terminating parental rights [listed in N.C.
Gen. Stat. § 7B-1111] exist.” N.C. Gen. Stat. § 7B-1104. N.C.
Gen. Stat. § 7B-1111(7) provides that the trial court may terminate
a party's parental rights upon a finding that
[t]he parent has willfully abandoned the
juvenile for at least six consecutive months
immediately preceding the filing of the
petition or motion, or the parent has
voluntarily abandoned an infant pursuant to
G.S. § 7B-500 for at least 60 consecutive days
immediately preceding the filing of the
petition or motion.
“Abandonment implies conduct on the part of the parent which
manifests a willful determination to forego all parental duties and
relinquish all parental claims to the child.”
In re Searle, 82
N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986).
Here, DSS alleged only three grounds for termination of
respondent's parental rights in its petition: (1) neglect, (2)
willfully leaving C.W. and J.W. in foster care without makingreasonable progress to correct the conditions that led to their
removal from the home, and (3) failing to pay child support for a
continuous period of six months preceding the filing of the
petition.
(See footnote 4)
DSS concedes in its brief “that the Petition to
Terminate Respondent-Appellant's Parental Rights did not contain an
allegation of Abandonment.” Even so, DSS urges this Court to
affirm the trial court's termination of respondent's parental
rights based on abandonment, arguing that “the evidence presented
[during the termination hearing] does support such a finding.”
“While there is no requirement that the factual allegations in
a petition for termination of parental rights be exhaustive or
extensive, they must put a party on notice as to what acts,
omissions, or conditions are at issue.”
In re Hardesty, 150 N.C.
App. 380, 384, 563 S.E.2d 79, 82 (2002). Because it is undisputed
that DSS did not allege abandonment as a ground for termination of
parental rights, respondent had no notice that abandonment would be
at issue during the termination hearing. Accordingly, the trial
court erred by terminating respondent's parental rights based on
this ground.
VII. Conclusion
For the reasons stated above, we hold that DSS failed to
present clear, cogent, and convincing evidence of any statutory
ground alleged in its petition for termination of respondent's
parental rights. Although respondent raises several additional
issues on appeal, including the questions of whether the trial
court abused its discretion in concluding that termination of hisparental rights was in the children's best interests and whether
the trial court erred by entering the termination order more than
thirty days after the termination hearing, we do not reach these
assignment of error. Our holdings on the above grounds are
dispositive and it is unnecessary to reach respondent's assignments
of error on these issues. Accordingly, we reverse the trial court
order terminating respondent's parental rights.
REVERSED.
Judges TYSON and STEPHENS concur.
Footnote: 1