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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN RE: D.R.B. SHEILA E. BOLICK and ALLEN R. BOLICK, Petitioners,
v. DOUGLAS SCOTT BRIZENDINE, Respondent
Filed: 17 April 2007
Termination of Parental Rights-_failure to include necessary findings of fact-
_incarceration cannot be sole factor
The trial court erred by terminating respondent father's parental rights, and the case is
remanded for entry of an order containing the necessary findings of fact which in turn support the
trial court's conclusions of law, because: (1) the trial court failed to identify any of the nine
grounds for termination in N.C.G.S. § 7B-1111(a) to support its conclusion of law; (2) without
an identified basis for the court's adjudication under N.C.G.S. § 7B-1109(e), the Court of
Appeals cannot effectively review the termination order; (3) where a respondent has been and
continues to be incarcerated, our courts have prohibited termination of parental rights solely on
that factor; and (4) the order does not indicate the evidentiary standard under which the court
made its adjudicatory findings of fact as required by N.C.G.S. § 7B-1109(f).
Appeal by respondent from order entered 18 September 2006 by
Judge Wayne L. Michael in Iredell County District Court. Heard in
the Court of Appeals 26 March 2007.
Patricia L. Riddick, for petitioners-appellees.
Winifred H. Dillon, for respondent-appellant.
Douglas Scott Brizendine (respondent) appeals from order
entered terminating his parental rights to his minor biological
child, D.R.B. We vacate and remand.
Respondent is the biological father of D.R.B. Allen and
Sheila Bolick (petitioners) are D.R.B.'s maternal grandfather and
step-grandmother. D.R.B. resided with his mother until he was ten
weeks old. Respondent lived with D.R.B. and his mother for seven
of those ten weeks. D.R.B.'s mother left D.R.B. in petitioners' care when D.R.B.
was ten weeks old. D.R.B. has resided with petitioners since that
date. The parental rights of D.R.B.'s mother have been terminated.
On 7 December 2004, respondent was convicted of robbery and is
currently serving a thirty year sentence. Respondent is currently
incarcerated at the Everglades Correctional Facility in Miami,
On 25 July 2005, petitioners filed a petition to terminate
respondent's parental rights. The petition alleged the following
to terminate: (1) respondent had visited D.R.B.
only one time, on 29 July 2003, since D.R.B.'s birth; (2)
respondent has had no contact with D.R.B. for a period of more than
one year; and (3) respondent has not provided financial support for
D.R.B. since D.R.B.'s birth. On 16 August 2006, the trial court
conducted hearings on petitioners' petition and ordered
respondent's parental rights be terminated. Respondent appeals.
Respondent argues the trial court's finding of fact numbered
19 and conclusion of law numbered 21 are insufficient because they
do not state a legal basis for terminating his parental rights.
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 thetrial 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., J.C., 173 N.C. App. 375, 380-81, 618 S.E.2d 813, 817
(2005) (internal quotations and citations omitted).
In order to terminate a respondent's parental rights, the
trial court must adjudicate the existence of one or more of the
statutory grounds for termination set forth in N.C. Gen. Stat. §
7B-1111(a). N.C. Gen. Stat. § 7B-1109(e) and (f) (2005). The
court must support its adjudication by findings of fact based upon
clear, cogent, and convincing evidence. Id. Our task in reviewing
a termination order is to determine whether the findings of fact
are based upon clear, cogent, and convincing evidence and whether
the findings support the conclusions of law. In re Huff, 140 N.C.
App. 288, 291, 536 S.E.2d 838, 840 (2000) (internal quotation
omitted), appeal dismissed and disc. rev. denied, 353 N.C. 374, 547
S.E.2d 9 (2001). For this Court to exercise its appellate function, the trial
court must enter sufficient findings of fact and conclusions of law
to reveal the reasoning which led to the court's ultimate decision.
Effective appellate review of an order entered
by a trial court sitting without a jury is
largely dependent upon the specificity by
which the order's rationale is articulated.
Evidence must support findings; findings must
support conclusions; conclusions must support
the judgment. Each . . . link in the chain of
reasoning must appear in the order itself.
Where there is a gap, it cannot be determined
on appeal whether the trial court correctly
exercised its function to find the facts and
apply the law thereto.
Coble v. Coble, 300 N.C. 708, 714, 268 S.E.2d 185, 190 (1980); see
N.C.R. Civ. P. 52(a)(1) (2005) (In all actions tried upon the
facts without a jury . . . the court shall find the facts
specifically and state separately its conclusions of law thereon .
. . .); Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657
(1982) (Noting that findings of fact must be sufficiently specific
to enable an appellate court to review the decision and test the
correctness of the judgment.).
A court may terminate parental rights upon a finding of one or
more grounds under N.C. Gen. Stat. § 7B-1111 to exist. The order
does not identify any statutory grounds for termination under N.C.
Gen. Stat. § 7B-1111(a), and concludes [t]hat grounds exist for
which Respondent's parental rights to the minor child, D.R.B.,
should be terminated[.] The trial court supported its conclusion
with the following findings of fact:
2. Respondent is currently incarcerated at
the Everglades Correctional Facility in Miami,
. . . .
4. Respondent is the biological father of the
minor child, D.R.B., born . . . in Mecklenburg
County, North Carolina. The minor child is
[approximately three and one-half years old].
5. The minor child lived with his biological
mother for the first ten (10) weeks of his
life and the Respondent lived with the
biological mother and the minor child for
seven (7) of those ten weeks.
. . . .
7. Respondent was convicted of Robbery on
December 7, 2004, and is serving a thirty (30)
year sentence. Respondent has been in the
custody of the Florida Department of
Corrections since October 31, 2003.
Respondent's expected release date is October
22, 2033. Respondent's first appeal was
denied and there are currently no additional
appeals pending, however, Respondent testified
that he is planning to file other appeals.
8. . . . [A]ny estimation of the likelihood of
Respondent's success in his appeal or release
before his sentence is over is [sic]
9. Respondent currently has no income or
assets other than the money he receives from
his parents. Respondent has never paid child
support for the minor child but the
Respondent's parents have provided support for
the minor child.
10. Respondent has not had any significant
contact with the minor child after the minor
child was ten (10) weeks old. The Petitioners
contend that the Respondent saw the minor
child at least once, on July 29, 2003, for
purposes of paternity testing.
11. The court finds that there is no
significant contact between the time the minor
child was ten (10) weeks old to the filing of
the Petition or from the filing of the
petition to the present time.
. . . .
14. . . . [T]here is a temporary and a
permanent custody order regarding the
biological mother, but said order is not
binding on Respondent.
. . . .
18. The minor child has been waiting for over
three (3) years for his parents to come
forward and care for him and as of the date of
this hearing, they have not. Whether the
Respondent will ever be able to do so, is
The trial court failed to identify which or any of the nine
grounds for termination in N.C. Gen. Stat. § 7B-1111(a) to support
its conclusion of law. Without an identified basis for the court's
adjudication under N.C. Gen. Stat. § 7B-1109(e), we cannot
effectively review the termination order. This Court does not
conduct an independent examination of each possible ground for
termination to determine if the facts proven might establish a
ground. See Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610
S.E.2d 360, 361 (2005) ([i]t is not the role of the appellate
courts . . . to create an appeal . . . .)
Petitioners' brief posits two potential grounds to support the
termination order. First, they cite N.C. Gen. Stat. § 7B-
1111(a)(4) (failure to provide support), but concede that the
court's findings of fact do not support this ground. Finding of
fact numbered 9 states, the Respondent's parents have provided
support for the minor child.
Next, petitioners cite N.C. Gen. Stat. § 7B-1111(a)(7)
(willful abandonment). Without addressing whether the evidence
would have supported these or any other grounds for termination, nofindings of fact were made on the issue of respondent's
willfulness, a required element of both N.C. Gen. Stat. § 7B-
1111(a)(4) and (7). In re Matherly, 149 N.C. App. 452, 455, 562
S.E.2d 15, 18 (2002) ([T]here must be a proper application of the
words 'willfully' in grounds (2) and (3).).
The trial court's findings do not establish grounds for
termination. Its failure to articulate those grounds is not
harmless. In re Bluebird, 105 N.C. App. 42, 51, 411 S.E.2d 820,
825 (1992); In re Pope, 144 N.C. App. 32, 38 n.4, 547 S.E.2d 153,
157 n.4, aff'd, 354 N.C. 359, 554 S.E.2d 644 (2001).
Where a respondent has been and continues to be incarcerated,
our courts have prohibited termination of parental rights solely on
that factor. Compare In re Shermer, 156 N.C. App. 281, 290-91, 576
S.E.2d 403, 409-10 (2003) (Willfulness not shown under N.C. Gen.
Stat. § 7B-1111(a)(2) where the respondent was incarcerated but
wrote letters and informed DSS that he did not want his parental
rights terminated.); In re Clark, 151 N.C. App. 286, 565 S.E.2d 245
(Termination of parental rights reversed where the father was
incarcerated and evidence was insufficient to find that he was
unable to care for his child.), disc. rev. denied, 356 N.C. 302,
570 S.E.2d 501 (2002); In re Yocum, 158 N.C. App. 198, 204, 580
S.E.2d 399, 403 (The respondent was incarcerated but also did
nothing to emotionally or financially support and benefit his
children.), aff'd, 357 N.C. 568, 597 S.E.2d 674 (2003); In re
Williams, 149 N.C. App. 951, 563 S.E.2d 202 (2002) (The father'sparental rights were terminated because he was incarcerated and he
failed to show filial affection for his child.).
The order appealed from does not indicate the evidentiary
standard under which the court made its adjudicatory findings of
fact, as required by N.C. Gen. Stat. § 7B-1109(f). In re Church,
136 N.C. App. 654, 657, 525 S.E.2d 478, 480 (2000). The trial
court must affirmatively state in its order that its findings of
fact at the adjudicatory stage of the termination proceedings are
based upon clear, cogent, and convincing evidence. Id.
We vacate the termination order and remand for entry of a
proper order containing the necessary findings of fact supported by
evidence meeting petitioners' burden of proof which in turn support
the trial court's conclusions of law. The trial court may receive
additional evidence on remand. See Heath v. Heath, 132 N.C. App.
36, 38, 509 S.E.2d 804, 805 (1999). In light of our decision, we
decline to address respondent's remaining assignments of error.
The trial court failed to enter adequate findings of fact and
conclusions of law to demonstrate the grounds for termination. We
vacate the trial court's order and remand.
Vacated and Remanded.
Judges HUNTER and MCCULLOUGH concur.
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