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Termination of Parental Rights_dismissal of first petition_second petition not barred by
res judicata
A second petition to terminate respondent mother's parental rights was not barred by res
judicata after the first petition was dismissed for failure to conduct the adjudicatory hearing
within 90 days after the petition was filed because there was no identity of issues between the
first and second petitions where the trial court ordered that grounds for termination under the
second petition could only be established by facts that occurred after the first petition was filed;
findings of fact in the termination order as to events that occurred prior to the filing of the first
petition were essentially background information without which the order would not make sense;
and the substantive factual findings upon which the trial court based its conclusions of law as to
the grounds for termination of parental rights all concerned facts that occurred after the first
petition was filed.
Office of Guilford County Attorney, by Deputy County Attorney
James A. Dickens, for petitioner-appellee.
Michael E. Casterline for respondent-appellant.
STROUD, Judge.
Respondent mother appeals from an order terminating her
parental rights to her daughter, I.J., and her son, T.J. For the
following reasons, we affirm.
The Guilford County Department of Social Services (DSS) took
non-secure custody of I.J. and T.J. in April of 2002 and the trial
court adjudicated the children neglected and dependent in October
of 2002. On 24 June 2004, DSS filed its first petition to
terminate respondent mother's parental rights (hereinafter “2004termination petition”) based upon the grounds that respondent
mother had neglected her children under N.C. Gen. Stat. § 7B-
1111(a)(1); had willfully left the children in foster care for more
than twelve months under N.C. Gen. Stat. § 7B-1111(a)(2); and had
failed to pay a reasonable portion of the cost of care for the
children under N.C. Gen. Stat. § 7B-1111(a)(3). In April of 2005,
I.J. and T.J. were returned to respondent mother on a trial
placement, but were placed back in foster care four months later.
The 2004 termination petition came on for hearing on 13 March
2006. Before evidence was presented, respondent mother moved to
dismiss the petition because the adjudicatory hearing had not been
held within ninety days from the filing of the petition, as
required by N.C. Gen. Stat. § 7B-1109(a). By order filed 30 March
2006, the trial court dismissed the petition on the grounds that
the 13 March 2006 “hearing [was] in excess of 20 months from the
date of filing the petition to terminate parental rights.” The
order further stated: “The [2004 termination] petition refers to
dates and events occurring in 2002 or later, and that the delay in
proceeding will result in prejudice and hardship to the respondent,
based on the ability to remember events so distant, and to defend
the petition.”
On 6 April 2006, DSS filed a second petition to terminate the
parental rights of respondent mother on the same three grounds
alleged in the 2004 petition. Respondent mother denied the
material allegations and moved to dismiss the second petition based
on the defense of res judicata, alleging that the 2004 terminationpetition was dismissed with prejudice. In the alternative,
respondent mother moved that the court limit the matters of
evidence to those facts occurring after 13 March 2006. By order
signed 2 November 2006, the trial court ordered that the “use of
evidence concerning matters occurring prior to June of 2004 is
[limited] to general factual allegations and [it is] require[d]
that the grounds for relief under the Petition must be established
by facts which have occurred after June 24, 2004.” Following a
hearing on the second termination petition, the trial court
concluded that grounds for termination of respondent mother's
parental rights existed under N.C. Gen. Stat. § 7B-1111(a)(1),
(a)(2) and (a)(3), and entered an order terminating those rights on
13 February 2007. Respondent mother appeals.
In her sole argument on appeal, respondent mother contends the
proceedings for termination of parental rights were barred by the
doctrine of res judicata. We disagree.
Under the doctrine of res judicata, a final
judgment on the merits in a prior action will
prevent a second suit based on the same cause
of action between the same parties or those in
privity with them. Generally, in order that
the judgment in a former action may be held to
constitute an estoppel as res judicata in a
subsequent action there must be identity of
parties, of subject matter and of issues.
Merrick v. Peterson, 143 N.C. App. 656, 662, 548 S.E.2d 171, 175-76
(2001) (internal citations and quotations omitted).
As noted above, the trial court ordered on 2 November 2006
that “the grounds for relief under the Petition must be established
by facts which have occurred after June 24, 2004.” Respondentargues that some of the findings of fact in the termination order
deal with events that occurred prior to June 24, 2004, although we
note that respondent did not assign error to the findings of fact
on that basis.
(See footnote 1)
However, the trial court also decreed in its 2
November 2006 order that “use of evidence concerning matters
occurring prior to June of 2004 is [limited] to general factual
allegations and [it is] require[d] that the grounds for relief
under the Petition must be established by facts which have occurred
after June 24, 2004.” The findings of fact in the termination
order as to events prior to 24 June 2004 are essentially background
information without which the order would not make sense. For
example, finding three is that “[t]he children first came into DSS
custody on July 13, 2000, due to inappropriate supervision and
failure of the Respondent mother, [J.O.], to access services to
prevent an injurious environment.” Findings four, five and six
then recite the general procedural history of the DSS's involvement
with the children from the time they came into DSS custody up to 1
April 2005. The substantive factual findings upon which the trial
court based its conclusions of law as to the grounds for
termination of parental rights are all facts which occurred after
24 June 2004. Since the trial court specifically based its orderonly upon facts which occurred after the filing of the first
petition, there is not identity of issues between the first and
second petitions and res judicata does not apply.
(See footnote 2)
Accordingly, we conclude that the order for termination of
parental rights should be
Affirmed.
Judges STEELMAN and JACKSON concur.
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