IN THE MATTER OF: Mitchell County
J.D.F., No. 02 J 7
Mitchell County Department of Social Services, by Hal G.
Harrison, for petitioner-appellee.
Carol Ann Bauer for respondent-mother.
Manning Fulton & Skinner, P.A., by Leanor D. Hodge, for Guardian ad Litem.
Brian Buchanan, for Guardian ad Litem.
By order entered 4 November 2005, Judge Alexander Lyerly
terminated the parental rights of respondent parents in their
child, J.D.F. Respondent mother appeals by petition for writ of
certiorari, granted by this Court 22 December 2006. We reverse and
remand for further proceedings not inconsistent with this opinion.
On 20 December 2004, the Mitchell County Department of Social Services (DSS) filed a juvenile petition alleging J.D.F. was a neglected juvenile on the ground the child lived in an environment injurious to the child's welfare. DSS alleged in the petition that both of J.D.F.'s parents were homeless; J.D.F. was at a shelterwhen respondent returned after curfew and tested positive for cocaine; respondent had been informed that she and J.D.F. could no longer reside at the shelter; and respondent threatened to abort her unborn child, give J.D.F. to DSS, and commit suicide. The petition further alleged J.D.F. was dependent because his father was homeless and could not be located, and respondent was being transported to a hospital for a mental health evaluation. On the same date, the trial court entered a nonsecure custody order placing J.D.F. in DSS custody. By order entered 30 December 2004, the trial court continued legal custody of J.D.F. with DSS.
On or about 25 April 2005, an adjudication and disposition hearing was held in Mitchell County District Court. Respondent was not present, and her appointed counsel moved to withdraw from the case. The trial court allowed respondent's counsel to withdraw and proceeded with the hearing. By order entered 4 May 2005, the trial court adjudicated J.D.F. as neglected and dependent. The trial court also entered a disposition order concluding it was in J.D.F.'s best interests to remain in the legal custody of DSS for placement in a licensed child care facility or other court-approved placement. DSS was relieved of further efforts to reunify J.D.F. with his parents at a 27 June 2005 review hearing.
On 15 September 2005, DSS filed a petition to terminate the parental rights of respondent and the father, alleging they had neglected J.D.F. The petition came on for hearing during the 24 October 2005 juvenile session of Mitchell County District Court. By order entered 4 November 2005, the trial court terminated theparental rights of respondent and the father. Respondent-mother appeals.
Respondent contends the trial court erred by failing to make specific findings of facts in its termination of parental rights order. We agree.
Section 7B-1109(e) of the North Carolina General Statutes provides in relevant part:
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-1109(e) (2006). In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially[.] N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2006). The trial court's findings must consist of more than a recitation of the allegations. In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002). The trial court must through 'processes of logical reasoning from the evidentiary facts' find the ultimate facts essential to support the conclusions of law. Anderson, 151 N.C. App. at 97, 564 S.E.2d at 602 (citation omitted). These findings of fact must be sufficiently specific to allow an appellate court to review the decision and test the correctness of the judgment. Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982). [T]he trial court may not delegate its fact finding duty . . . [and] should not broadly incorporate . . . written reports from outside sources as its findings of fact. In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004). Here, the trial court made thirteen numbered findings of fact. Findings of fact one through four identify the parties involved in the action. Finding of fact number five states the petition has not been filed to circumvent the provisions of Chapter 50A of the General States, and the Uniform Child Custody Jurisdiction Act.
Findings of fact six and seven recite what was contained in a previous court order and the allegations contained in the initial petition filed by DSS:
6. The Court takes judicial notice of all documents contained in the Court File in the above captioned matter. Specifically, the Court finds that an Order adjudicating the juvenile neglected and dependent was entered on 29 April and based upon a hearing held at the 25 April session of Juvenile Court for Mitchell County. This Order recites that the respondent mother was not present. It further recites that her counsel informed the Court that he had no contact from the respondent mother concerning this hearing, and did not know of her whereabouts. The adjudication of the juvenile in that Order was based upon a Petition filed on 20 December 2004 alleging that the child was neglected, in that he was living in an environment injurious to his health and welfare, that both parents were homeless, that the child had been left unsupervised at a homeless shelter by the respondent mother. That the respondent mother returned to that homeless shelter after the curfew implemented by that shelter, and at that time tested positive for cocaine, a controlled substance. The Petition further alleges that at that time the respondent mother threatened to abort an unborn child she was presently carrying; give the above-captioned juvenile to Mitchell County DSS; cut her wrist and commit suicide.
7. The Petition further alleges that the juvenile was dependent based upon the foregoing allegations together with the allegation that there was no suitable relative or other individual to provide care andsupervision for the juvenile, in that the respondent mother was hospitalized.
In finding of fact number eight, the trial court recites that it has taken judicial notice of orders and other documents previously filed in this case:
8. That a Non-Secure Custody Order placing legal custody of the above-captioned juvenile with Mitchell County DSS was entered on 21 December 2004. The Court takes judicial notice as to all subsequent and intervening Court Orders between 21 December 2004 and 24 October 2005. Additionally, the Court takes judicial notice of all intervening Affidavits as to Reasonable Efforts and Court Reports filed by the Petitioner, Mitchell County DSS and all Guardian Ad Litem Reports filed during that same period of time. The Court further takes judicial notice of all Findings of Fact and Conclusions of Law in all of the aforementioned subsequent and intervening Orders. Each and every document enumerated herein contained and set out all of the conditions and requirements necessary for reunification of the child with the respondent parents.
Finding of fact number 9 includes findings of fact and conclusions of law. We have underlined the conclusions of law:
9. Since 20 December 2004 and up until [the hearing on the petition to terminate parental rights], the respondent mother made no substantial progress in addressing the problems that caused and led to the removal of the minor child from her custody, and that led to the ultimate adjudication of the minor child as a neglected and a dependent juvenile. As to both respondent parents, the above-captioned juvenile remains and continues to be neglected and dependent.
Finding of fact number ten relates solely to J.D.F.'s father, and although denoted findings of fact, numbers 11, 12 and 13 contain the trial court's conclusions of law that J.D.F. wasneglected; that petitioner proved the claim for termination of parental rights by clear and convincing evidence; and that it is in the best interests of J.D.F. to terminate the parental rights of the parents.
Notwithstanding the presence of finding of fact number 9, we conclude the trial court's findings are not specific ultimate facts sufficient for this Court to evaluate the trial court's decision and test the correctness of its judgment. The court order lacks any real specificity, and the findings say little or nothing about the conduct of respondent.
We make several additional observations about the current record and the order on appeal. First, the petition and motion in the cause to terminate, filed 15 September 2005, only alleges in boilerplate language that respondent neglected the juvenile. This does not comply with N.C.G.S. § 7B-1104(6)(2005), which requires the petition to allege [f]acts that are sufficient to warrant a determination that one or more of the grounds for terminating parental rights exist. We make this observation notwithstanding the fact a prior neglect and dependency adjudication order was attached to the petition _ something that may, under limited circumstances, excuse this deficiency. See In re Quevedo, 106 N.C. App. 574, 419 S.E.2d 158 (1992). However, the statute requires more than what is contained in the subject petition. Moreover, the petition to terminate must comply with N.C.G.S. § 7B-1104(5)(2005), which requires that a copy of a custody order be attached to the petition to show the juvenile wasin the custody of petitioner at the time the petition was filed. The order that was attached to the 15 September 2005 petition does not clearly satisfy this requirement. Next, the petition to terminate parental rights only alleges that respondent neglected J.D.F., but the order on termination finds that the juvenile remains and continues to be neglected and dependent. (Emphasis added). Next, the petition cites the definitions provision, N.C.G.S. § 7B-101 (2005), in alleging respondent neglected the juvenile, but fails to reference N.C.G.S. § 7B-1111(a)(1)(2005), the applicable provision. In fact, neither the petition to terminate nor the termination order references or mentions any of the specific statutory grounds set forth in N.C.G.S. § 7B-1111 _ and the order merely finds that the juvenile is a neglected juvenile as defined by the pertinent portions of statutes pertaining to the termination of parental rights. (Emphasis added). Finally, because the juvenile has been out of respondent's care, and because the gravamen of the petition to terminate is neglect, the trial court should make findings and conclusions with greater clarity concerning the principles set forth in In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984), and its progeny.
We recognize and understand that our district court judges are extremely busy and are under tremendous pressure to file hundreds of orders on a continuing basis. We nonetheless cannot sustain the present order, and urge our judicial colleague to provide greater clarity in its order for this case _ an important case concerning whether the legal relationship between respondent and this childshould be permanently severed.
In sum, because the order on appeal consists largely of a recitation of DSS's allegations and an acknowledgment that the trial court took judicial notice of previous orders and other documents, we reverse the subject order and remand this matter to the trial court for proceedings not inconsistent with this opinion. See In re O.W., 164 N.C. App. 699, 704, 596 S.E.2d 851, 854 (2004) (case properly remanded to the trial court to make findings of fact where the findings were not specific ultimate facts sufficient for this Court to determine that the adjudication was adequately supported by competent evidence).
On remand, it is within the discretion of the trial court whether to take additional evidence.
Reversed and remanded.
Judges GEER and JACKSON concur.
Report per Rule 30(e).
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