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.
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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