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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 THE MATTER OF: T.M.H.
Filed: 16 October 2007
1. Termination of Parental Rights--subject matter jurisdiction--verified petition
The trial court had subject matter jurisdiction in a termination of parental rights case even
though the verified petition failed to contain all of the information required by N.C.G.S. § 7B-
1104, because: (1) the father asserted no prejudice arising from the alleged omissions, and none
was found; and (2) the record as a whole disclosed the father had access to all of the information
required by the statute, and the petition was substantially compliant on its face.
2. Termination of Parental Rights--sufficiency of findings of fact--willfulness
The trial court erred in a termination of parental rights case by failing to make specific
findings of fact or to state in its conclusions of law that the father's actions were willful, and the
case is remanded to the trial court to make appropriate findings as to willfulness and, if
appropriate, to articulate conclusions of law including grounds under N.C.G.S. § 7B-1111(a)
forming the basis for termination. The trial court may, in its discretion, receive additional
evidence on remand.
Appeal by respondent father from order entered 27 February
2007 by Judge A. Elizabeth Keever in Cumberland County District
Court. Heard in the Court of Appeals 4 September 2007.
Robert E. Ewing, for respondent-appellant.
Hedahl and Radtke Famly Law Center, by Debra J. Radke, for
Where the trial court failed to make findings of fact and
conclusions of law concerning the willfulness of respondent's
conduct, the order of the trial court must be vacated and remanded
for further findings.
On 23 January 2006, mother filed a petition to terminate
father's parental rights to T.M.H. The verified petition alleged
that the father had failed to pay reasonable support or have anycontact with the minor child for a continuous period of more than
six months and failed to acknowledge birthdays, Christmas, or other
holidays. The petition further alleged that mother was a resident
of Cumberland County, North Carolina, and that respondent was the
biological father of the child and a resident of Nash County, North
Carolina. On 24 January 2006, a summmons issued. In an answer
filed 4 October 2006, respondent admitted his paternity of the
minor child and his residency in North Carolina but denied
petitioner's substantive allegations regarding the grounds for
After a two-day hearing in December 2006, the trial court
ordered that father's parental rights be terminated.
February 2007, the court entered a written order reflecting, in
relevant part, the following findings of fact:
8. That the court finds by clear, cogent and
convincing evidence that [T.B. and T.H.] are
the parents of . . . T.M.H. born . . . in Nash
County . . . .
. . . .
13. . . . [T]hat after [May 2001] father had
little or no contact with the minor child.
. . . .
15. That the . . . father did not attempt to
exercise [Christmas] visitation with [the
16. That the father left Nash County [to
live] in the Charlotte/Concord area thereafter
and continues to reside there at this time.
17. That subsequent to the entry of the child
support order in 1998, the father paid . . .
child support of approximately $1000.00 in1999, approximately $1000.00 in 2000, $400.00
in 2004, $30.00 in 2005 and $1000.00 in 2006.
18. That much of the payment for . . . child
support [was made] in order to avoid being
placed in jail for . . . failure to comply.
19. That [the father] testified . . . that he
had the ability to pay child support during
that period of time but chose not to since he
was not visit[ing] with the minor child during
20. That the father did not take the action
necessary to enforce [his previously-entered]
visitation order . . . .
21. That [the father] made no real effort to
maintain contact with . . . the minor child
following the year 2001.
. . . .
24. That the father has not maintained a
relationship with the minor child and the
child knows the step father a[s] the emotional
and father [sic] in his life.
25. That the father ha[s], in fact, abandoned
the minor child.
26. That the father failed to pay adequate
child support for the minor child although he
had the ability to do so.
The order reflected the following two conclusions of law:
1. That there are grounds for termination of
[father's] parental rights.
2. That it is in the child's best interest
that [father's] parental rights be terminated.
Father filed timely notice of appeal from the termination order.
I. Jurisdictional Challenge
 In his first argument, father contends that, because the
petition failed to comply with N.C.G.S. § 7B-1104, the trial court
was without subject matter jurisdiction over the case. We
N.C.G.S. § 7B-1104 (2005) requires a verified petition to
include: (1) the child's name, date and place of birth, as well as
county of current residence; (2) petitioner's name and address, and
status upon which she is authorized to file such a petition; (3)
name and address of both parents; (4) facts sufficient to warrant
a determination that one or more grounds exist for terminating
parental rights; and (5) a statement that the petition has not been
filed to circumvent the Uniform Child-Custody Jurisdiction and
Only a violation of the verification requirement of N.C.G.S.
§ 7B-1104 has been held to be a jurisdictional defect per se. In
re Triscari Children, 109 N.C. App. 285, 287-88, 426 S.E.2d 435,
436 (1993) (applying former N.C.G.S. § 7A-289.25); see also In re
T.R.P., 360 N.C. 588, 593-94, 636 S.E.2d 787, 792 (2006).
Father's reliance on In re Z.T.B., 170 N.C. App. 564, 613
S.E.2d 298 (2005) is misplaced. Although this Court held that the
failure of the petitioner to set forth the information required by
N.C.G.S. § 7B-1104 was reversible error, even absent a showing of
prejudice, the decision was grounded in the Court's inability to
follow the trial court's reasoning for its conclusions. Id. at
569-70, 613 S.E.2d at 301. The opinion distinguished the case fromIn re Humphrey, 156 N.C. App. 533, 577 S.E.2d 421 (2003) (requiring
a showing of prejudice) as follows:
In Humphrey, this Court had all the facts
available to it for review. . . . Humphrey is
further distinguishable in that the defect in
the petition in that case could be overcome by
information contained on the face of the
In re Z.T.B., 170 N.C. App. at 569-70, 613 S.E.2d at 301.
We find the petition filed in this cause sufficient to confer
jurisdiction on the district court. Father asserts no prejudice
arising from the alleged omissions, and we find none. The record
as a whole discloses that father had access to all of the
information required by the statute, and the petition was
substantially compliant on its face.
This argument is without merit.
III. Appellate Review
 In his second argument, father contends that, because the
trial court failed to make specific findings of fact or to state in
its conclusions of law that the father's actions were willful, the
findings do not conclusively establish grounds for termination of
parental rights. We agree. Although the trial court's conclusions of law fail to identify
which statutory grounds the court relied upon in terminating
parental rights, petitioner suggests that there were two grounds:
(1) failure to provide support under N.C.G.S. § 7B-1111(a)(4); and
This Court is bound by its prior decisions encompassing the
same legal issue. In re Civil Penalty, 324 N.C. 373, 384, 379
S.E.2d 30, 36-37 (1989). In In re D.R.B., 182 N.C. App. 733, 643
S.E.2d 77 (2007), this Court vacated a judgment that failed to
articulate the specific grounds for termination, stating:
For this Court to exercise its appellate
function, the trial court must enter
sufficient findings of fact and conclusions oflaw to reveal the reasoning which led to the
court's ultimate decision.
Id., 182 N.C. App. at 736, 643 S.E.2d at 79
citing Coble v. Coble,
300 N.C. 708, 714, 268 S.E.2d 185, 190 (1980)). Without an
identified basis for the court's adjudication under [N.C.G.S.] §
7B-1109(e), we cannot effectively review the termination order.
Id., 182 N.C. App. at 737-38, 643 S.E.2d at 80.
(2) abandonment under N.C.G.S. § 7B-1111(a)(7). One of the
required elements that petitioner must demonstrate to establish
each of these grounds is that respondent's conduct was willful.
The order before us contains no findings of willfulness. In the
absence of a finding of willfulness, the trial court's order does
not establish grounds for termination. See id
.; In re Matherly
149 N.C. App. 452, 455, 562 S.E.2d 15, 18 (2002).
We further note that the termination order was printed,
signed, and filed on the ruled stationery of petitioner's trial
attorney. It is important that our trial courts not only be
impartial, but also have every appearance of impartiality. We
strongly discourage judges from signing orders prepared on
stationery bearing the name of any law firm.
We vacate the order and remand the matter to the trial court
with instructions to make appropriate findings as to the
willfulness of father's conduct, and then, if appropriate, toarticulate conclusions of law that include the grounds under
N.C.G.S. § 7B-1111(a) which form the basis for termination. The
trial court may, in its discretion, 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.
AFFIRMED IN PART.
VACATED AND REMANDED IN PART.
Judges JACKSON and STROUD concur.
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