IN THE MATTER OF: Mitchell County
J.D.F., No. 02 J 7
Minor Child.
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.
LEVINSON, Judge.
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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