IN THE MATTER OF:
Henderson County
L.A.A. No. 05 JT 110
Janna D. Allison for petitioner-appellee-mother.
Thomas B. Kakassy for respondent-appellant-father.
MARTIN, Chief Judge.
Nathaniel A. (respondent) appeals from an order terminating
his parental rights to the minor child L.A.A. For the reasons
stated below, the trial court's termination order is vacated and
remanded for entry of a proper order.
April M. (petitioner), the child's mother, filed a petition on
9 September 2005 to terminate respondent's parental rights. She
alleged respondent had “willfully abandoned the minor child for at
least six consecutive months immediately preceding the filing of
this petition.” Respondent denied the allegation in his answer and
moved to dismiss the petition on 3 March 2006.
The trial court heard the matter on 5 October 2006.
Petitioner, her mother, the Guardian ad Litem, and a transport
officer with the Henderson County Sheriff's Department testified atthe hearing. Respondent declined to testify after being informed
of his Fifth Amendment rights. After hearing arguments from
counsel, the trial court took the matter under advisement.
Although the trial court made nineteen findings of fact in its
order entered on 20 October 2006, its order contains no statement
of the standard of proof applied in the adjudicatory stage of the
termination proceedings. The trial court's order also contains no
findings of fact or conclusions of law as to the best interests of
the child. In an amended notice of appeal filed on 6 November
2006, respondent appeals from the trial court's termination order.
Respondent asserts the trial court erred in failing to apply
the proper evidentiary standard to its findings of fact, and he
argues the trial court did not state in its order that its findings
of fact are based upon clear, cogent and convincing evidence.
Respondent further asserts the trial court failed to make any
findings of fact or conclusions of law concerning the best
interests of the child as required by N.C.G.S. § 7B-1110 (2005)
before terminating his parental rights. We agree.
Pursuant to N.C.G.S. § 7B-1109(f) (2005), the trial court is
required to state affirmatively in its order the standard of proof
utilized in the termination proceeding. In re Church, 136 N.C.
App. 654, 657, 525 S.E.2d 478, 480 (2000). The order from which
respondent appeals does not indicate the evidentiary standard
utilized by the trial court making its adjudicatory findings of
fact. The trial court's failure here to recite the standard of
proof applied in the adjudicatory stage of the terminationproceedings is error. Id. Additionally, after concluding during
the adjudicatory stage that grounds for termination existed, the
trial court in its order failed to make the statutorily-required
determination of “whether terminating the parent's rights is in the
juvenile's best interest.” N.C. Gen. Stat. § 7B-1110(a).
Accordingly, the termination order is vacated and remanded for
entry of an order which contains both the evidentiary standard
utilized by the trial court in making its adjudicatory findings of
fact and a “best interests” determination by the trial court in the
dispositional stage. The trial court may 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 three remaining assignments of error.
Vacated and remanded.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
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