Appeal by respondent from order entered 16 April 2007 by Judge
Shelly S. Holt in New Hanover County District Court. Heard in the
Court of Appeals 25 September 2007.
Dean W. Hollandsworth for petitioner-appellee.
Mary McCullers Reece for respondent-appellant.
North Carolina Guardian ad Litem Program, by Pamela Newell
Williams, for guardian ad litem-appellee.
Respondent mother appeals from an order terminating her
parental rights to five children on the grounds of neglect,
dependency, abandonment, and lack of reasonable progress in
correcting the conditions that led to the removal of the children
from her custody. Although the trial court found that respondent
loves her children and cares deeply about their welfare, it is
undisputed that respondent, who resides in an assisted living
facility, cannot currently care for her children because of severe
physical limitations resulting from a gunshot wound sustained
during a drug deal two years ago. We hold that the trial court'sdetermination that this incapacity will continue for the
foreseeable future is supported by the evidence despite
respondent's understandable optimism that some day she may improve
sufficiently to care for her children. We, therefore, affirm the
trial court's order to the extent that it concludes that grounds
exist for termination of parental rights under N.C. Gen. Stat. §
7B-1111(a)(6) (2005). We must, however, set aside the
dispositional portion of the order and remand for further findings
of fact because the trial court failed to make the findings
required under N.C. Gen. Stat. § 7B-1110(a) (2005).
Four of the five children involved in this case have been in
the custody of the New Hanover County Department of Social Services
("DSS") since July 2003. The fifth child has been in DSS custody
since his birth in September 2005. The four eldest children were
adjudicated to be neglected and dependent on 11 September 2003.
That order required respondent to obtain stable housing and
employment, obtain a mental health assessment and follow any
recommendations, complete an approved parenting program, and
provide random drug/alcohol screens.
On 27 May 2004, one of the children was placed with respondent
on a trial basis. While the child was with her, respondent took
him off his medication and did not consistently transport him to
therapy appointments. DSS was authorized to remove the child upon
further non-compliance. On 4 August 2004, however, the child was
returned to foster care after respondent was incarcerated forfailure to appear on a charge of non-payment of child support.
Respondent did not notify DSS of the incarceration, but rather had
her aunt and uncle care for the child, even though DSS had
previously determined that placement with the uncle was
inappropriate because he had engaged in incest with respondent's
On 10 September 2004, respondent was evicted for non-payment
of rent. She did not subsequently maintain stable housing and
worked only sporadically. In November and December 2004,
respondent met with a therapist four times, during which sessions
she blamed the loss of her children on DSS. She provided one
diluted drug screen and failed to undergo a second drug screen,
claiming that she had forgotten about it. Respondent did complete
the required parenting program.
On 5 March 2005, while respondent was pregnant with her
youngest child, she was participating in a drug deal in a motel
room in Greensboro when she was shot in the head and left for dead.
Respondent remained in a coma for two months and now has vision
problems, is unable to write or dress herself, and can only walk a
few steps unassisted. She is transported by other people in a
wheelchair. At the time of the termination of parental rights
hearing, respondent resided in an assisted living facility. The
five children now range in age from two years old to 11 years old.
In June 2006, DSS filed a petition to terminate respondent's
parental rights as to three of the children: M.A.C., A.W., and
A.I.W. In August 2006, a second petition was filed as to M.C. andG.W., which was followed by an amended petition a few days later
correcting the identity of the father of M.C. Respondent filed
answers to both of the petitions and filed a separate motion to
dismiss the M.C. and G.W. petition for failure to state a claim for
relief under Rule 12(b)(6) of the Rules of Civil Procedure.
In an order dated 29 January 2007, the trial court terminated
the parental rights of each of the fathers of the children, but
continued the hearing as to respondent. The court subsequently
conducted a hearing addressing respondent's parental rights on 19
March 2007. On 16 April 2007, the trial court entered an order
concluding that the following grounds existed to terminate
respondent's parental rights: (1) respondent had neglected the
children; (2) respondent was incapable of providing proper care and
supervision to the minors such that they are dependent; (3)
respondent willfully left the children in foster care for more than
12 months without making reasonable progress in correcting the
conditions that led to removal of the children; and (4) respondent
willfully abandoned the children for at least six months
immediately preceding the petition by engaging in activity
reasonably foreseeable to result in incarceration or injury. The
court further determined that termination of parental rights was in
the children's best interests. Respondent timely appealed from
Respondent first contends the trial court lacked subject
matter jurisdiction because the petitions failed to set forthsufficient facts to establish the existence of grounds to terminate
parental rights in violation of N.C. Gen. Stat. § 7B-1104(6)
(2005). In support of this argument, respondent cites In re
, 106 N.C. App. 574, 419 S.E.2d 158 (1992), and In re
, 150 N.C. App. 380, 563 S.E.2d 79 (2002).
, this Court confirmed that the question whether a
petition states "[f]acts that are sufficient to warrant a
determination that one or more of the grounds for terminating
parental rights exist," as required by N.C. Gen. Stat. § 7B-
1104(6), constitutes a contention that the petition fails to state
a claim for relief under Rule 12(b)(6) of the Rules of Civil
, 106 N.C. App. at 578, 419 S.E.2d at 159
(construing N.C. Gen. Stat. § 7A-289.25(6) (1989), the identically-
worded predecessor statute). Recently, this Court has specifically
held: "The Rules of Civil Procedure apply to proceedings for
termination of parental rights, and a Rule 12(b)(6) motion may not
be made for the first time on appeal." In re H.L.A.D.
, __ N.C.
App. __, __, 646 S.E.2d 425, 434 (2007) (internal quotation marks
and citation omitted). Thus, if a parent fails to file a Rule
12(b)(6) motion in the trial court, then the issue of the
sufficiency of the petition's allegations has not been properly
preserved for appellate review. Id.
In this case, respondent did not move to dismiss the petition
filed with respect to M.A.C., A.W., and A.I.W. Respondent may not,
therefore, contend for the first time on appeal that the
allegations of that petition were insufficient. Althoughrespondent did move to dismiss the M.C. and G.W. petition, we hold
that the petition is sufficient.
We agree with respondent that the petition primarily parrots
the statutory grounds. Nevertheless, it also attaches and
incorporates by reference the adjudicatory orders for all the
children, including the recent order for G.W. These orders supply
sufficient facts to comply with N.C. Gen. Stat. § 7B-1104(6). See
, 106 N.C. App. at 579, 419 S.E.2d at 160 (holding that
trial court properly did not dismiss petition, although it recited
only statutory grounds, when petition incorporated by reference
custody order reciting sufficient facts). We note, however, that
the preferred practice would be to allege the pertinent facts in
Respondent next challenges each of the grounds for termination
found by the trial court. Under the North Carolina Juvenile Code,
a termination of parental rights proceeding involves two distinct
phases: an adjudicatory stage and a dispositional stage. In re
, 148 N.C. App. 228, 233, 558 S.E.2d 498, 501 (2002).
"First, in the adjudicatory stage, the trial court must determine
whether the evidence clearly and convincingly establishes at least
one ground for the termination of parental rights listed in N.C.
Gen. Stat. § 7B-1111." Id.
After the petitioner has proven at
least one ground for termination, "the trial court proceeds to the
dispositional phase and must consider whether termination is in the
best interests of the child." In re Shermer
, 156 N.C. App. 281,
285, 576 S.E.2d 403, 406 (2003); see also
N.C. Gen. Stat. §7B-1110(a) ("[T]he court shall determine whether terminating the
parent's rights is in the juvenile's best interest.").
In this case, we hold that the trial court properly concluded
that the ground of dependency, N.C. Gen. Stat. § 7B-1111(a)(6),
existed. "Having concluded that at least one ground for
termination of parental rights existed, we need not address the
additional ground[s] . . . found by the trial court." In re
, 163 N.C. App. 540, 546, 594 S.E.2d 89, 93-94 (2004).
N.C. Gen. Stat. § 7B-1111(a)(6) provides:
That the parent is incapable of providing for
the proper care and supervision of the
juvenile, such that the juvenile is a
dependent juvenile within the meaning of G.S.
7B-101, and that there is a reasonable
probability that such incapability will
continue for the foreseeable future.
Incapability under this subdivision may be the
result of substance abuse, mental retardation,
mental illness, organic brain syndrome, or any
other cause or condition that renders the
parent unable or unavailable to parent the
juvenile and the parent lacks an appropriate
alternative child care arrangement.
N.C. Gen. Stat. § 7B-101(9) (2005) in turn defines "dependent
A juvenile in need of assistance or placement
because the juvenile has no parent, guardian,
or custodian responsible for the juvenile's
care or supervision or whose parent, guardian,
or custodian is unable to provide for the care
or supervision and lacks an appropriate
alternative child care arrangement.
In this case, the trial court found that four of the children
had, prior to respondent's gunshot wound, been adjudicated
dependent. Thus, respondent's inability to provide care or
supervision for the children predated her current condition. Withrespect to G.W., the court found that he had been found to be
dependent because respondent's "hospital stay and rehabilitation
[following the gunshot wound] left her physically unable to parent
said child." The court further found with respect to respondent's
current condition: "Respondent . . . resides in an assisted living
home in New Hanover County. She has vision problems, is unable to
write or dress herself and can take only a few steps unassisted.
Other than that she must be transported by others in a wheelchair.
She is unable to care for her minor children."
Respondent does not argue that these findings are unsupported
by evidence, but rather contends that DSS failed to prove this
ground because it did not present medical evidence regarding
respondent's prognosis for recovering sufficiently to take care of
her children. Respondent relies exclusively on In re Scott
N.C. App. 760, 383 S.E.2d 690, disc. review denied
, 325 N.C. 708,
388 S.E.2d 459 (1989).
, the trial court had terminated the parental rights
of the respondent, who suffered from a personality disorder, based
on the ground of dependency. This Court reversed for lack of
clear, cogent, and convincing evidence to support that ground. Id.
at 764, 383 S.E.2d at 692. The only evidence offered by the
petitioner to show that the respondent was mentally incapable of
caring for her children was the testimony of her treating
at 763, 383 S.E.2d at 691. That psychiatrist
had, however, testified both generally that a personality disorder
does not necessarily render a person incapable of raising childrenand specifically that the respondent's pattern of behavior did not
mean that she was incapable of caring for her children. Id.
Further, the psychiatrist could not predict within a reasonable
probability that respondent's mental illness would continue
throughout the minority of the children, especially given that the
respondent was then experiencing her longest sustained period of
Contrary to respondent's contention, nothing in Scott
that expert testimony is required in all cases prior to a
determination of dependency or a finding that the parent's
incapability will continue for the foreseeable future. While in
some cases, such as Scott
, such evidence might be necessary, this
case does not fall in that category. Respondent's incapability, as
found by the trial court, is the result of substantial physical
limitations, including her lack of independent mobility and need
for other people to transport her in a wheelchair and even dress
her. Her profound limitations were apparent by observation in the
courtroom and through her testimony and that of the DSS social
worker. Indeed, the physical limitations were essentially
undisputed, and no medical testimony was necessary to establish
Respondent does not contend in her brief that she is currently
able to provide care and supervision to her children given her
existing physical limitations. Instead, she points to her own
testimony "that she was improving and that she believed that she
would be able to raise her children if given the chance." She thenargues that "there was certainly no way for the trial court to
evaluate her prognosis for the future without hearing medical
testimony." The issue, however, is not whether respondent will be
able, at some point during the children's minority, to provide the
necessary care and supervision of her children. The trial court
was required to decide only whether respondent's incapability to
parent "will continue for the foreseeable future."
(See footnote 1)
The trial court could reasonably consider the very limited
progress respondent had made over the two years since the gunshot
wound, her current condition, and how far she still had to go to be
able to function as a parent. While medical evidence might have
been helpful, the trial court's actual observations of respondent
and the testimony were a sufficient basis for the court's
determination that respondent's incapability would continue for the
(See footnote 2)
Respondent argues additionally that the trial court erred in
concluding that the children were dependent because "an appropriate
alternative child care arrangement" existed. Respondent points to
the fact that respondent, in her testimony, identified her "AuntLinda" as someone who would help her if respondent regained custody
of her children. The DSS social worker, however, testified that
although she had heard of "Aunt Linda," she had never been able to
obtain any information about her from interviews with other family
In addition, other evidence indicated that no appropriate
alternative child care arrangement was available. The trial court
found that when respondent became aware, in the summer of 2004,
that she was going to be incarcerated, respondent placed her son
M.C. with another aunt and uncle, even though DSS had previously
decided that such placement was inappropriate because the uncle had
committed incest with respondent's sister. This action of
respondent suggests a lack of other appropriate alternatives.
Further, the court also took judicial notice of all prior orders in
the children's cases, which included the relatively recent
adjudication for G.W. in February 2006, in which the court found
that "[t]here is no appropriate family placement for the Juvenile."
Respondent's vague reference in her testimony to an "Aunt
Linda" as a source of help (and not as a possible alternative child
care arrangement) did not preclude the trial court's conclusion
that the children were dependent under N.C. Gen. Stat. § 7B-
1111(a)(6), especially in light of the consistent determinations
throughout the proceedings involving the children that no
appropriate family placement existed for the children.
Accordingly, we hold that the trial court properly found that
grounds existed to terminate respondent's parental rights. Finally, respondent contends that the trial court erred in
concluding that termination of her parental rights is in the best
interests of the children because the court failed to comply with
N.C. Gen. Stat. § 7B-1110(a). That statute provides:
(a) After an adjudication that one or
more grounds for terminating a parent's rights
exist, the court shall determine whether
terminating the parent's rights is in the
juvenile's best interest. In making this
determination, the court shall consider the
(1) The age of the juvenile.
(2) The likelihood of adoption of the
(3) Whether the termination of parental
rights will aid in the
accomplishment of the permanent plan
for the juvenile.
(4) The bond between the juvenile and
(5) The quality of the relationship
between the juvenile and the
proposed adoptive parent, guardian,
custodian, or other permanent
(6) Any relevant consideration.
(Emphasis added.) This statute is the result of amendments
applicable to petitions filed on or after 1 October 2005. 2005
N.C. Sess. Laws 398 § 17.
We agree with respondent that the trial court did not fully
comply with § 7B-1110(a). The court made findings of fact
regarding the age of each child and found that three of the
children "are in pre-adoptive foster homes." As to the two
remaining children, however, the court simply found that they were"in therapeutic placement due to their aggressive nature," with no
finding as to the likelihood of adoption. The court indicated
consideration of the third factor by specifying that termination of
parental rights was necessary "so that the children can be afforded
an opportunity for adoption and permanence." While the court found
that respondent "loves her children and is deeply concerned for
their welfare," it made no findings regarding the nature of the
children's bond with their mother as required by § 7B-1110(a)(4).
Finally, as to § 7B-1110(a)(5), the order contains no findings
regarding "[t]he quality of the relationship between the juvenile
and the proposed adoptive parent," even with respect to the three
children in pre-adoptive foster homes.
Thus, the trial court failed to fully comply with § 7B-
1110(a). We must, therefore, set aside the dispositional part of
the order and remand for further findings of fact. We leave to the
discretion of the trial court whether to hear additional evidence
regarding the dispositional factors.
Affirmed in part; remanded in part.
Judges CALABRIA and STEPHENS concur.
Report per Rule 30(e).