IN THE MATTER OF: New Hanover County
D.J., S.R., JR., No. 06 J 242-245
Don R. and Dom R.
New Hanover County Department of Social Services, by Russell
Davis, Jr., for petitioner-appellee.
Janet K. Ledbetter, for respondent-appellant mother.
Holly M. Groce, for Guardian ad Litem.
Regina Floyd Davis, for Juvenile Guardian ad Litem.
LEVINSON, Judge.
Respondent mother appeals from an order terminating her
parental rights to her minor children, D.J., S.R., Jr., Don. R. and
Dom R., collectively, the “minor children.” For the following
reasons we reverse and remand.
On 20 October 2004, the New Hanover County Department of
Social Services (DSS) took non-secure custody of the minor children
upon the filing of juvenile petition alleging that the minor
children were neglected and
dependent. The trial court conducting
a hearing on the petition in January of 2005. By order signed 6
January 2005, the trial court adjudicated the minor children
neglected. The trial court found, among other things,:
2. That the Respondent-Parents, through their
respective counsel, stipulated to an amended
Juvenile Petition alleging neglect of the
Juveniles [] as follows: that the Juveniles
are neglected Juveniles in that the Juveniles
do not receive proper care, supervision, or
discipline from the Juveniles' parent[s] and
that the Juveniles live in an environment
injurious to their welfare. Specifically, on
or about October 20, 2004 and preceding: The
Respondent-Mother is apparently suffering from
depression. She admits to cocaine and
marijuana usage as recently as October 15,
2004 and the Respondent-Mother has made
several late night calls to various human
services personnel asking for help in getting
into programs because of acute depression at
those times. These calls alarm the petitioner
due to safety issues with the Juveniles. The
Respondent-Father is alleged to have substance
abuse issues. All parties stipulated to the
amended Petition and the Dependency claim was
dismissed.
The trial court ordered respondent mother to complete substance
abuse assessments, follow all recommendations and submit to random
drug screens; maintain appropriate housing and employment; complete
a mental health assessment and follow all recommendations.
On 28 April 2006, DSS filed a petition to terminate the
parental rights of respondent mother. The trial court heard
evidence and by order filed 26 September 2006 made the following
findings of fact:
1. The Court heard testimony of Sonja Henry,
social worker assigned to this matter, who
testified in support of all material
allegations contained in the Petition.
2. The father, [], was personally served with
the summons and petition on May 17, 2006 and
failed to file responsive pleadings or appear
at this hearing.
3. The mother, [], was personally served with
the summons and petition on May 23, 2006. No
responsive pleading was filed on her behalf.
4. That Respondents have neglected the minor
children, who were adjudicated as neglected
and dependent within the meaning of N.C.G.S.
7B-101(9) and (15) on January 6, 2005. The
order found Respondents did not provide proper
care, supervision or discipline for the minors
and further ordered legal custody remain with
Petitioner.
5. By said January 6, 2005 order, Respondents
were ordered to complete substance abuse
assessments, follow all recommendations of
such assessments, submit to random drug
screens and maintain appropriate housing and
employment.
6. That the minors were placed by Petitioner
in the home of a paternal aunt and uncle. The
eldest two minors are enrolled in school and
their progress [is] normal. The youngest two,
twins, were described by the social worker as
children with special needs. One suffers
cerebral palsy. The other suffers from slower
than normal development.
7. Each of the twins requires medical
attention. Visits for medical examination or
treatment are necessary two to four times a
month. The minor with cerebral palsy requires
treatment in Chapel Hill, N.C. every other
month.
8. Respondent mother lives in the home of an
uncle and is employed. She does not own a
motor vehicle and is not licensed to operate
one.
9. Respondent mother did not complete drug
treatment. She tested positive for the first
drug screen and negative for each screen
thereafter.
10. Respondent mother has regularly visited
the children in supervised settings and at
school functions. She has made one child
support payment. Respondent father has been
gainfully employed during the pendency of this
action and has not made payments of supportfor the minor children. He has tested
negative on drug[] screens but has not
complied with several requests for screening.
He has not completed drug treatment.
11. Respondent mother is on a waiting list
for subsidized housing. The waiting period is
one year. She has provided some items of
clothing and gifts for the children.
12. Respondent[] father last visited with the
children in February, 2006.
13. That the Respondent Mother and Father have
engaged in acts of domestic violence resulting
in serious bodily injury to both.
14. This proceeding was not filed to
circumvent the provisions of G.S. Chapter 50A,
the Uniform Child Custody Jurisdiction and
Enforcement Act, and the Court has
jurisdiction to make child custody
determinations pursuant to G.S. 50A-201.
15. The Court took judicial notice of all
orders in those Juvenile files bearing the
file numbers 04 J 459-462 and notes that the
children have been in the custody of the New
Hanover County Department of Social Services
since October 20, 2004. They are placed in a
foster home in which the foster parents desire
to adopt them.
16. That it is in the best interests of the
children that the parental rights of [mother]
and [father] be terminated so that the
children can be afforded an opportunity for
adoption and permanence.
Based upon these findings, the trial court concluded:
1. That the grounds to terminate the parental
rights of the Respondent Parents, [], to the
minor children, D.R., S.R., Jr., Don R. and
Dom R., have been established by clear, cogent
and convincing evidence and those grounds are
that the Respondent Parents have neglected the
children and that the probability of
repetition of neglect is strong. The
Respondent Parents left the children in foster
care for more than twelve months without
showing to the satisfaction of the Court thatreasonable progress under the circumstances
has been made to correct the conditions that
led to the children's removal. Further that
Respondents for a period of six months next
preceeding the filing of this Petition have
failed for such period to pay a reasonable
portion of the cost of foster care for the
minor children although physically and
financially able to do so.
2. The parental rights of [mother] and
[father] should be terminated for the reasons
detailed in the Findings of fact and such
action is in the best interest of the minor
children.
From this order, respondent mother appeals.
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). 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.
Respondent mother contends the trial court's findings of fact
are not ultimate and specific findings and that they are
insufficient to support termination of her parental rights. We
agree. N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) provides in pertinent
part: “In all actions tried upon the facts without a jury . . . the
court shall find the facts specially and state separately its
conclusions of law . . . .” N.C. Gen. Stat. § 1A-1, Rule 52(a)(1)
(2005). At the adjudication portion of a termination of parental
rights hearing, the trial court must “take evidence, find the
facts, and . . . 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) (2005). The trial court must “find the ultimate facts
essential to support the conclusions of law.” In re Harton, 156
N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003).
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 a 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).
By its earlier order, the trial court adjudicated the minor
children neglected based in large measure on respondent mother's
depression, drug use and “safety issues[.]” In its terminationorder, the trial court did not make any findings regarding
respondent's mental health. Although the trial court found that
respondent mother and the father had engaged in acts of domestic
violence, the trial court did not make any findings as regards the
safety of the children. Further, the trial court made a finding
that with the exception of the initial positive drug test,
respondent has tested negative. This singular finding concerning
mother's drug use does little to support neglect. We conclude the
trial court's findings are not sufficiently specific to support a
conclusion that respondent neglected the children.
We next turn to the court's conclusion that respondent left
her children in foster care without making reasonable progress.
After the children were adjudicated neglected, the trial court
ordered respondent to complete substance abuse assessments and
follow recommendations, submit to random drug screens, maintain
appropriate housing, maintain appropriate employment and complete
a mental health assessment and follow recommendations. In its
termination order, the trial court did not make any findings
regarding respondent mother's mental health. The second area of
concern was respondent mother's progress with housing. The court
found that at the time of the hearing, respondent mother was living
in the home of an uncle. The trial court did not, however, make
any findings regarding the appropriateness of this living
situation. The court's third concern was mother's employment. On
this particular issue, the court made the singular finding that
respondent mother “is employed.” The final area of concern wasrespondent mother's drug use. Although the trial court found that
mother failed to complete drug treatment, the trial court should
make findings in this regard with greater specificity. Finally, we
observe that the trial court did not conclude that mother
“willfully” left the children in foster care without making
reasonable progress, G.S. § 7B-1101(a)(2). We conclude the trial
court failed to make sufficiently detailed findings of fact to
support its conclusion that mother failed to make reasonable
progress.
We next turn to the failure to pay child support ground. N.C.
Gen. Stat. § 7B-1111 provides:
The juvenile has been placed in the custody of a county
department of social services, a licensed child-placing
agency, a child-caring institution, or a foster home, and
the parent, for a continuous period of six months next
preceding the filing of the petition or motion, has
willfully failed for such period to pay a reasonable
portion of the cost of care for the juvenile although
physically and financially able to do so.
N.C. Gen. Stat. § 7B-1111(a)(3) (2005). “In determining what
constitutes a 'reasonable portion' of the cost of care for a child,
the parent's ability to pay is the controlling characteristic. 'A
parent is required to pay that portion of the cost of foster care
for the child that is fair, just and equitable based upon the
parent's ability or means to pay. What is within a parent's
ability to pay or what is within the means of a parent to pay is a
difficult standard which requires great flexibility in its
application.'” In re Clark, 151 N.C. App. 286, 288-89, 565 S.E.2d
245, 247 (2002) (quoting In Re Clark, 303 N.C. 592, 604, 281 S.E.2d
47, 55 (1981)) (internal quotation marks omitted). “[N]onpaymentconstitutes a failure to pay a reasonable portion 'if and only if
respondent [is] able to pay some amount greater than zero.'” Id.
(quoting In Re Bradley, 57 N.C. App. 475, 479, 291 S.E.2d 800, 802
(1982)) (citation omitted).
The trial court found that respondent mother “is employed”;
“has made one child support payment”; and “provided some items of
clothing and gifts for the children.” There is no determination by
the trial court that mother had the ability to pay a reasonable
portion of her children's care, or what this amount may have been.
Furthermore, the trial court did not specifically address whether
she was employed at any time between 8 November 2005 and 8 May
2006, the relevant period for this statutory ground to terminate.
Finally, we observe that the trial court did not conclude that
mother “willfully” failed to pay for the care of the children, G.S.
§ 7B-1111(a)(3). We conclude the findings lack the specificity
required to support a conclusion that mother failed to pay a
reasonable portion of the children's care.
In sum, the trial court's findings of fact do not support its
legal conclusions that grounds existed to terminate respondent's
parental rights. 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.
Reversed and remanded.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).
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