Appeal by respondent from order entered 1 March 2006 by Judge
R. Les Turner in Wayne County District Court. Heard in the Court
of Appeals 11 January 2007.
E.B. Borden Parker for petitioner-appellee.
Richard Croutharmel for respondent-appellant.
Respondent mother appeals from an order terminating her
parental rights as to her minor daughter, M.S.B. ("Michelle").
(See footnote 1)
The evidence in the record indicates that respondent mother has
given birth to ten children (none of whom reside with her); has a
continuing history of significant crack cocaine use; was in a
cocaine-induced coma a month before the birth of Michelle; and,
since that time, has been arrested for prostitution, assault, and
armed robbery. Nevertheless, the order entered by the trial court
contains almost no substantive findings of fact to support its
conclusion that the mother's parental rights should be terminated
based on neglect and abandonment. Strikingly, petitioner WayneCounty Department of Social Services ("DSS") has made little effort
to defend the order. It filed in this Court a three-and-a-half-
page brief _ including caption and signature _ that does not even
bother to address the abandonment ground. Because the court's
findings of fact do not support its conclusions of law, we are left
with no choice but to reverse and remand for further findings of
fact, thereby prolonging this troubling case.
The record indicates that Michelle, respondent's tenth child,
was born in October 2004. Respondent does not have custody of any
of her remaining children; one of them died when a month old. A
month before Michelle's birth, respondent was airlifted to Pitt
Memorial Hospital due to acute respiratory failure after using
crack cocaine, where she remained in a coma for two days.
Following Michelle's birth, respondent admitted to using crack
cocaine on a regular basis throughout her pregnancy. DSS took
custody of Michelle three days after her birth and placed her with
a woman who was ultimately determined to be Michelle's paternal
In November 2004, DSS filed a petition alleging that Michelle
was neglected and dependent. In the same month, respondent was
arrested for prostitution. Respondent did not attend the initial
adjudication hearing conducted on 16 December 2004, and, on 27
January 2005, the district court adjudicated Michelle a neglected
and dependent juvenile. The district court found the above facts
and also that respondent lived in a home that had holes in thefloor and walls, had only a couch and a folding chair as furniture,
and contained no food except for a burrito. The district court
also found that respondent had hit her boyfriend _ who, at that
time, was believed to be Michelle's father _ with a 2x4, for which
she was jailed for assault, and that respondent had bitten her
boyfriend, leaving scabs.
On 28 June 2005, after a permanency planning hearing, the
district court noted that Michelle's father, the brother of
Michelle's custodian, had since been identified through a paternity
test. The district court made detailed findings regarding
respondent's drug usage from age 13 through the present, including
the fact that respondent had admitted cocaine usage twice following
Michelle's birth; respondent's history of domestic violence with
her boyfriend; respondent's failure to follow through on classes
and testing required by the court; and respondent's arrest for
prostitution and incarceration. The court found that respondent,
who was 36, "has had a rough life and has made no progress in
correcting the conditions that caused the removal of the juvenile
from her" and "[t]hat the Court cannot conceive of the juvenile
being returned to the mother or to [the father] within six months
of this date." Accordingly, the court relieved DSS of any further
reunification efforts and changed the permanent plan for Michelle
On 3 November 2005, DSS filed a petition to terminate
respondent's and the father's parental rights, alleging as grounds
for termination that respondent had neglected and abandonedMichelle. A hearing was held on the petition on 31 January 2006.
Respondent did not attend. Following the hearing, the trial court
entered an order signed 28 February 2006, concluding that both
parents had neglected and abandoned Michelle. Respondent mother
timely appealed from that order.
(See footnote 2)
A termination of parental rights proceeding is conducted in
two phases: (1) an adjudication phase that is governed by N.C. Gen.
Stat. § 7B-1109 (2005) and (2) a disposition phase that is governed
by N.C. Gen. Stat. § 7B-1110 (2005). In re Blackburn
, 142 N.C.
App. 607, 610, 543 S.E.2d 906, 908 (2001). During the adjudication
stage, petitioner has the burden of proving by clear, cogent, and
convincing evidence that one or more of the statutory grounds for
termination set forth in N.C. Gen. Stat. § 7B-1111 (2005) exist.
In re Huff
, 140 N.C. App. 288, 290, 536 S.E.2d 838, 840 (2000),
appeal dismissed and disc. review denied
, 353 N.C. 374, 547 S.E.2d
9 (2001). It is the responsibility of this Court to determine
whether the trial court's findings of fact are supported by clear,
cogent, and convincing evidence and whether the findings of fact
support the conclusions of law. Id.
at 291, 536 S.E.2d at 840.
After making various findings regarding the filing and service
of the petition and the father's desires, the district court stated
"[t]hat the Court took Judicial Notice of the file entitled: In TheMatter Of M.S.B.
; 04 JA 235." The court did not make any further
reference to the file or incorporate any of the findings of fact
contained in prior orders. Instead, the court then made findings
of fact regarding Michelle's paternity and the following findings
relating to the merits of the petition:
13. That the mother of the juvenile is
believed to be again residing with
[A.L.B.], who has been in a domestic
violence situation with the mother of the
juvenile in the past.
14. That the mother has neglected and
abandoned the juvenile.
15. That the mother does not visit the
juvenile nor does she provide any
assistance for the juvenile.
16. That the father has neglected and
abandoned the juvenile.
17. That the father has not provided support
for the juvenile.
18. That grounds exist to terminate the
parental rights of the parents of the
juvenile in that both parents have
neglected and abandoned the juvenile.
Following these findings, the order appears to move to
dispositional findings of fact that include, with respect to the
24. That this is the tenth child born to the
mother and the mother does not have
custody of any of her children.
25. That the mother has a history of drug
26. That the father is unable to care for the
juvenile at this time.
The district court made no other findings of fact relating to the
conduct of respondent.
With respect to the court's finding of neglect, it is well-
settled that "'[t]he petitioner seeking termination bears the
burden of showing by clear, cogent and convincing evidence that
such neglect exists at the time of the termination proceeding.'"
In re Beasley
, 147 N.C. App. 399, 404, 555 S.E.2d 643, 647 (2001)
(quoting In re Ballard
, 311 N.C. 708, 716, 319 S.E.2d 227, 232
(1984)). When, as here, the child has been out of the parent's
custody for an extended period, neglect may be established by a
prior adjudication of neglect together with proof of a probability
of a repetition of neglect. In re Shermer
, 156 N.C. App. 281, 286,
576 S.E.2d 403, 407 (2003).
In the district court's order terminating respondent's
parental rights, while the court took judicial notice of the prior
file, the order contains no findings of fact based upon review of
that file and the prior orders.
(See footnote 3)
The record reveals that Michelle
was adjudicated neglected, but the court made no such finding in
support of its ultimate conclusion that grounds existed for
termination of parental rights. Further, neither the court's
factual findings nor its conclusions of law mention any likelihood
of a repetition of neglect. See In re Pope
, 144 N.C. App. 32, 37,547 S.E.2d 153, 156 (explaining that "parental rights may
nevertheless be terminated if there is a showing of a past
adjudication of neglect and the trial court finds by clear and
convincing evidence a probability of repetition of neglect
juvenile were returned to the parent" (emphasis added)), aff'd per
, 354 N.C. 359, 554 S.E.2d 644 (2001). Even liberally
reading the order, we can find nothing in it that would allow us to
conclude that the trial court made the necessary determination as
to the probability of a repetition of neglect. Accordingly, we
must reverse the district court's conclusion regarding the
existence of neglect. See In re C.C.
, 173 N.C. App. 375, 382, 618
S.E.2d 813, 818 (2005) ("trial court erred in concluding as a
matter of law that respondent willfully neglected the children"
where "no evidence was presented and no finding was made that a
probability of repetition of neglect existed at the time of the
Turning to the abandonment ground, we first note that DSS
makes no attempt on appeal to defend that aspect of the district
court's order. DSS' brief does not even mention the trial court's
finding of abandonment, let alone supply any arguments that might
support this ground for termination.
Under N.C. Gen. Stat. § 7B-1111(a)(7), abandonment occurs when
"[t]he parent has willfully abandoned the juvenile for at least six
consecutive months immediately preceding the filing of the petition
. . . ." Abandonment requires a finding of "'conduct on the part
of the parent which manifests a willful determination to forego allparental duties and relinquish all parental claims to the child.'"
In re Young
, 346 N.C. 244, 251, 485 S.E.2d 612, 617 (1997) (quoting
In re Adoption of Searle
, 82 N.C. App. 273, 275, 346 S.E.2d 511,
514 (1986)). Since DSS filed its petition to terminate
respondent's parental rights on 3 November 2005, the relevant time
period for considering whether respondent "abandoned" Michelle is
3 May 2005 to 3 November 2005.
The sole finding of fact that could be considered to relate to
this ground states: "That the mother does not visit the juvenile
nor does she provide any assistance for the juvenile." With
respect to the visitation part of this finding, it is not supported
by the evidence in the record. The DSS social worker testified at
the hearing that respondent had visited the child at least three
times. As for the failure to provide assistance, there was no
testimony at the termination hearing to support that portion of the
finding of fact. A review of the orders in the file _ of which the
trial court took judicial notice _ also does not provide any
support for a finding that respondent did not "provide any
assistance" from 3 May to 3 November. Finally, the order contains
no finding that this failure to provide assistance represented a
"'willful determination to forego all parental duties,'" as
required for abandonment. Id.
, 82 N.C. App. at
275, 346 S.E.2d at 514). We, therefore, cannot uphold the trial
court's conclusion that the ground of abandonment justified
termination of respondent's parental rights. In sum, the trial court's factual findings do not support its
legal conclusion that grounds existed to terminate respondent's
parental rights. While the record, when considered as a whole,
raises serious concerns about respondent's fitness as a parent, we
cannot affirm a termination order premised upon inadequate factual
findings. Accordingly, we reverse the order and remand for further
findings of fact. We leave to the discretion of the trial court
whether to consider additional evidence on these issues. Given our
resolution of this appeal, we do not address respondent's
contentions regarding the disposition phase.
Reversed and remanded.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).