An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA09-494
NORTH CAROLINA COURT OF APPEALS
Filed: 6 October 2009
IN THE MATTER OF:
J.M.C., N.E.G.-V.,
E.J.G.-V., and C.R.G.-V.
Wilkes County
Nos. 07 JT 63-66
Appeal by respondent-appellant from order entered 18 February
2009 by Judge Jeanie R. Houston in District Court, Wilkes County.
Heard in the Court of Appeals 24 August 2009.
Paul W. Freeman, Jr., for petitioner-appellee Wilkes County
Department of Social Services.
David A. Perez, for respondent-appellant mother.
Tracie M. Jordan, for Guardian ad Litem.
STROUD, Judge.
Respondent-appellant appeals from order entered 18 February
2009 by Judge Jeanie R. Houston in District Court, Wilkes County
terminating her parental rights to her four children.
After
careful review, we hold that the trial court’s findings of fact do
not support the grounds for termination.
decision of the trial court.
We therefore reverse the
-2Respondent-appellant has four children: eight-year-old J.M.C
(“Jack”), six-year-old
E.J.G.-V (“Eric”), five-year-old N.E.G.-V
(“Nick”), and three-year-old C.R.G.-V
four children have special needs.
(“Carl”)1.
Three of the
Carl, Nick, and Jack all have
been diagnosed as having Attention Deficit Hyperactivity Disorder
(“ADHD”).
Carl also has had several seizures, has an auditory
processing delay, and receives speech therapy.
speech therapy.
Nick too receives
Jack, in addition to ADHD, has spina bifida.
When
Jack was originally taken into DSS custody, he was unable to walk
and needed a wheelchair.
His condition has since improved, but he
still walks with braces and crutches and requires catheterization.
Respondent-appellant’s four children have been in the custody
and care of the Wilkes County Department of Social Services (“DSS”)
since 13 July 2007.
DSS took custody of the children and placed
them in foster care pursuant to four nonsecure custody orders in
which the trial court found the children were exposed to “a
substantial risk of physical injury or sexual abuse because the
parent, guardian, custodian, or caretaker has created conditions
likely to cause injury or abuse or has failed to provide, or is
unable to provide adequate supervision or protection.” Respondent-
1
We will refer to the minor children J.M.C., E.J.G.-V.,
N.E.G.-V., and C.R.G.-V by pseudonyms, Jack, Eric, Nick and Carl,
to protect the children’s identities and for ease of reading.
-3appellant voluntarily agreed to the children’s placement in DSS
custody.
The four children are not in the same placement.
Jack is
in a separate placement to accommodate his condition; Nick and Eric
are in a placement together; and Carl is in a separate placement.
On 17 July 2007, the four children were adjudicated dependent,
based on an agreement between respondent-appellant and DSS. Around
the same time, DSS initiated a Family Service Case Plan (“case
plan”)
with
respondent-appellant,
but
progress during the remainder of 2007.
she
made
little
to
no
Additionally, she did not
visit with the children during this time.
The trial court conducted a permanency planning hearing on 10
December 2007 and entered an order on 16 January 2008, in which it
changed the permanent plan from reunification to adoption.
In the
order, the trial court relieved DSS of any responsibility for
further
reunification
efforts,
concluding
that
“[a]ny
further
efforts to eliminate the need for placement of the children would
be futile and contrary to the children’s need for a safe, permanent
home within a reasonable amount of time.” However, the trial court
did grant respondent-appellant two supervised visits per month with
the children.
Subsequently, respondent-appellant began to make some progress
on her case plan.
She had two supervised visits with Eric, Nick
and Carl in February 2008, which were arranged by Melody Stockwell
-4(“Ms. Stockwell”), the DSS social worker assigned to her case at
the
time.
Respondent-appellant
testified
that
she
requested
visitation several times, but Ms. Stockwell delayed visitation and
did not set up any visits until January 2008. Respondent-appellant
did not have any visits with Jack.
DSS apparently scheduled a
visit with Jack around the holidays in late 2007, but respondentappellant missed the visit.
According to respondent-appellant,
there was a misunderstanding regarding the visit.
Based on a
conversation with Ms. Stockwell, respondent-appellant was under the
impression that the visit was scheduled for January.
Respondent-appellant had the two visits with three of her
children, but visitation was ceased shortly thereafter.
DSS
stopped visitation in March 2008 due to inappropriate comments that
respondent-appellant reportedly made to the children.
The trial
court held a review hearing on 9 June 2008, and in an order entered
1 July 2008, the trial court formally ceased visitation. The trial
court found that respondent-appellant told the children that they
were
coming
home
on
9
June
2008,
which
upset
the
children.
Further, the trial court found that the children’s behaviors had
deteriorated
following
visitation was ceased.
visitation,
but
had
Respondent-appellant
improved
after
testified that she
had not requested visitation since June 2008.
Given the trial
-5court’s order, respondent-appellant was under the impression that
she was not able to request visitation.
On 14 March 2008, DSS filed petitions to terminate respondentappellant’s parental rights to Jack, Eric, Nick, and Carl.
DSS
alleged the following grounds for termination: (1) neglect and (2)
willful abandonment.
DSS also sought to terminate the parental
rights of the fathers.2
The trial court conducted a termination hearing on 8 January
2009.
Ms. Stockwell did not testify.
However, Mary Severt (“Ms.
Severt”), the DSS social worker who took over the case in March
2008, offered testimony regarding respondent-appellant’s case plan.
According
to
Ms.
Severt,
appellant
to
obtain
the
stable
case
plan
employment,
required
to
obtain
respondentstable
and
appropriate housing, to complete parenting classes and to obtain a
psychiatric
evaluation.
Although
respondent-appellant
made
progress fulfilling on these requirements, it occurred after the
filing
of
completed
the
her
petition.
parenting
For
classes
instance,
and
respondent-appellant
obtained
her
psychiatric
evaluation in November 2008, had been employed since October 2008,
2
Respondent-appellant’s estranged husband is the father of
Eric, Nick, and Carl, but Jack has a different father. At the time
the petitions were filed, Jack’s paternity had not been
conclusively established and the purported fathers’ whereabouts
were unknown. The fathers are not involved in this appeal.
-6and obtained housing in June 2008.
Ms. Severt also testified that
the housing was not appropriate.
Ms. Severt believed that the
bedrooms and bathroom were upstairs; therefore, the apartment could
not
accommodate
Jack’s
disability.
Additionally,
Ms.
Severt
testified that, while respondent-appellant had maintained a job
since October, she had been through approximately five other jobs
in
the
calendar
year.
Ms.
Severt
further
testified
that
respondent-appellant had not sent the children any cards or gifts
and was not paying any support for the children.
The children’s
foster parents and a DSS community support service technician also
testified on behalf of DSS.
Respondent-appellant testified in her
own behalf, outlining the progress she had made on her case plan
and her attempts to set up visitation with her children.
Following the hearing, the trial court entered an order on 18
February 2009 finding the existence of the grounds for termination
alleged by DSS.
At disposition, the trial court concluded that it
was in the best interests of the children to terminate respondentappellant’s parental rights.
Respondent-appellant gave timely
notice of appeal from the orders.
The court also terminated the
parental rights of the biological father of Eric, Nick, and Carl,
as well as parental rights of the purported fathers of Jack.
of the fathers appealed.
None
-7Proceedings to terminate parental rights are conducted in two
parts: (1) the adjudication stage, governed by N.C. Gen. Stat.
§ 7B-1109, and (2) the disposition stage, governed by N.C. Gen.
Stat. § 7B-1110.
In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d
144, 146 (2003).
On appeal, respondent-appellant raises the
following issues: (1) she challenges several adjudicatory findings
of fact on the grounds that they are not supported by clear,
cogent, and convincing evidence; (2) she contends that the trial
court erred in concluding that the grounds of neglect and willful
abandonment
existed
to
terminate
her
parental
rights
to
the
children; and (3) she argues that the trial court abused its
discretion in concluding that it was in the best interests of the
children
to
terminate
respondent-appellant’s
parental
rights.
However, as explained below, we need not address all of respondentappellant’s arguments, because we conclude that the trial court
erred in concluding that DSS proved the existence of neglect and
willful abandonment as grounds for termination.
Pursuant to N.C. Gen. Stat. § 7B-1111(a) (2007), a trial court
may terminate parental rights upon a finding of one of the ten
enumerated grounds. “In [the adjudication] stage, the burden is on
the petitioner to provide ‘clear, cogent, and convincing evidence’
that the named grounds in N.C. Gen. Stat. § 7B-1111(a) (2005)
exist.”
In re S.W., 187 N.C. App. 505, 506, 653 S.E.2d 425, 425-26
-8(2007). On appeal, we review the trial court’s orders to determine
“whether the trial court’s findings of fact were based on clear,
cogent, and convincing evidence, and whether those findings of fact
support a conclusion that parental termination should occur.”
In
re Oghenekevebe, 123 N.C. App. 434, 435-36, 473 S.E.2d 393, 395
(1996) (citation omitted).
The trial court concluded that termination of respondentappellant’s parental rights was justified based on the following
grounds: (1) neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1)
and (2) willful abandonment pursuant to N.C. Gen. Stat. § 7B1111(a)(7). Although the trial court found that two grounds exist,
“[a] single ground . . . is sufficient to support an order
terminating parental rights.”
In re J.M.W., 179 N.C. App. 788,
789, 635 S.E.2d 916, 917 (2006).
Respondent-appellant challenges
both grounds for termination, as well as several findings of fact.
However, we need not address the majority of respondent-appellant’s
challenges to the findings of fact because the findings do not
support the grounds for termination as a matter of law.
First, we turn to the ground of neglect.
7B-1111
lists
neglect
as
one
of
the
N.C. Gen. Stat. §
grounds
for
terminating
parental rights and provides, in pertinent part:
(a) The court may terminate the parental
rights upon a finding of one or more of the
following:
-9(1)
The parent has abused or neglected
the juvenile. The juvenile shall be
deemed to be . . . neglected if the
court finds the juvenile to be . . .
a neglected juvenile within the
meaning of G.S. 7B-101.
N.C. Gen. Stat. § 7B-1111(a)(1) (2007).
Neglect, in turn, is
defined as follows:
Neglected juvenile. — A juvenile who does not
receive
proper
care,
supervision,
or
discipline
from
the
juvenile’s
parent,
guardian, custodian, or caretaker; or who has
been abandoned; or who is not provided
necessary medical care; or who is not provided
necessary remedial care; or who lives in an
environment
injurious
to
the
juvenile's
welfare; or who has been placed for care or
adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15) (2007).
However, when a child has not been in the custody of a parent
for a significant amount of time prior to the termination hearing,
as is the case here, “the trial court must employ a different kind
of analysis to determine whether the evidence supports a finding of
neglect.”
In re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403,
407 (2003) (citing In re Pierce, 146 N.C. App. 641, 651, 554 S.E.2d
25, 31 (2001), aff'd, 356 N.C. 68, 565 S.E.2d 81 (2002)).
Because
the determinative factor is the parent’s ability to care for the
child at the time of the hearing, we previously have explained that
“requiring the petitioner in such circumstances to show that the
child is currently neglected by the parent would make termination
-10of parental rights impossible.”
Id.
(emphasis added) (citing In
re Ballard, 311 N.C. 708, 714, 319 S.E.2d 227, 232 (1984)).
Therefore, the trial court must “find that grounds for termination
exist upon a showing of a ‘history of neglect by the parent and the
probability of a repetition of neglect.’”
In re L.O.K., 174 N.C.
App. 426, 435, 621 S.E.2d 236, 242 (2005) (quoting Shermer, 156
N.C. App. at 286, 576 S.E.2d at 407).
parent
prior
adjudication
to
of
losing
such
custody
neglect--is
“[E]vidence of neglect by a
of
a
child--including
admissible
proceedings to terminate parental rights.”
in
an
subsequent
Ballard, 311 N.C. at
715, 319 S.E.2d at 232. Additionally, “[t]he trial court must also
consider
any
evidence
of
changed
conditions
in
light
of
the
evidence of prior neglect and the probability of a repetition of
neglect.”
Id.
Here, the trial court concluded that
[t]he Petitioner has shown by clear and
convincing evidence that grounds exist for the
termination of the parental rights of the
Respondent-parents pursuant to G.S. § 7B1111(a)(1),
in
that
said
children
are
neglected juveniles, as that term is defined
by
G.S.
§
7B-101.
In
making
this
determination, the Court has considered any
evidence of change of circumstances since the
children were removed from their mother’s
home; and that the Court does not find any
significant positive changes.
Although
the
trial
court
considered
changed
circumstance,
-11noticeably absent from this conclusion is any finding regarding
respondent-appellant’s probability of repetition of neglect.
Nor
do the findings of fact mention any likelihood of repetition of
neglect.
Without such a finding, the trial court’s conclusion is
in error.
See In re C.C., 173 N.C. App. 375, 382, 618 S.E.2d 813,
818
(2005)
(concluding
that
the
trial
court
erred
where
“no
evidence was presented and no finding was made that a probability
of repetition of neglect existed at the time of the termination
hearing”).
Moreover, the trial court’s order does not contain any finding
of
prior
neglect.
Although
the
children
were
removed
from
respondent-appellant’s custody, the trial court order contains no
finding that the children were neglected by respondent-appellant
while in her custody.
We previously have found error where a trial
court concluded that grounds exist under N.C. Gen. Stat. § 7B1111(a)(1) without any evidence of prior neglect while the parent
had custody of the juvenile in question.
In re J.G.B., 177 N.C.
App. 375, 382, 628 S.E.2d 450, 455-56 (2006).
In J.G.B., the
juvenile had been adjudicated dependent, but the adjudication
occurred after the juvenile was removed from the parent’s custody.
Id.
Because there was no other evidence of neglect prior to the
juvenile’s removal, we concluded that the evidence in J.G.B. was
insufficient to establish prior neglect.
Id.
-12Here, we are faced with a similar situation.
case,
none
neglected.
of
the
four
children
were
In the instant
previously
adjudicated
Although the children were adjudicated dependent, the
adjudication occurred after they were removed from respondentappellant’s
custody.
Therefore,
the
insufficient to establish prior neglect.
prior
adjudication
See id.
is
Additionally,
the trial court’s order does not contain any findings of fact
regarding respondent-appellant’s conduct or parenting prior to the
children’s removal on 13 July 2007, from which one could conclude
that the children were indeed neglected.
All of the trial court’s
findings of fact address respondent-appellant’s conduct since the
children were taken into DSS custody, which is insufficient to
establish past neglect.
See id.
Accordingly, we hold that the
trial court erred in concluding that grounds existed under N.C.
Gen. Stat. § 7B-1111(a)(1) to terminate respondent-appellant’s
parental rights.
Next, we turn to the second ground for termination, willful
abandonment.
N.C. Gen.
Stat. § 7B-1111 provides that the trial
court may terminate parental rights upon a finding that “[t]he
parent has willfully abandoned the juvenile for at least six
consecutive months immediately preceding the filing of the petition
or motion. . . .”
N.C. Gen. Stat. § 7B-1111(a)(7).
Willful
abandonment under this subsection “‘implies conduct on the part of
-13the parent which manifests a willful determination to forego all
parental 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)).
“It has been held that if a parent withholds his
presence, his love, his care, the opportunity to display filial
affection, and wilfully neglects to lend support and maintenance,
such parent relinquishes all parental claims and abandons the
child.”
Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608
(1962).
“The word ‘willful’ encompasses more than an intention to
do a thing; there must also be purpose and deliberation.”
Searle,
82 N.C. App. at 275, 346 S.E.2d at 514 (citations omitted).
Because
DSS
filed
its
petition
to
terminate
respondent-
appellant’s parental rights on 14 March 2008, the relevant time
period for considering whether she “abandoned” Jack, Nick, Eric,
and Carl is 14 September 2007 to 14 March 2008.
The trial court
made the following findings of fact which address this ground
during the relevant time period:
21.
Visitation between the mother and [the]
children was stopped in March, 2008. The
visitation was stopped because one or
more children became very upset and
uncontrollable after visitation with the
mother. These behaviors improved after
the visits ceased.
. . . .
-1433.
Although the mother had opportunities to
visit with the children before March,
2008, she went from July, 2007 until
February, 2008 and had no contact with
the children. Indeed, since the children
have been in foster [c]are, the mother
has had two (2) visits with them, both in
February, 2008. During these visits, the
mother made inappropriate comments to one
or more of the children telling them that
they would be coming home in the near
future.
. . . .
35.
The mother has had no visits with [Jack]
since [Jack] has been in [foster] care.
A Christmas visit during 2007 was
scheduled with the mother. However, this
visit did not occur and the child became
upset.
36.
The mother has not sent any cards,
letters, or other gifts to the children
on a consistent basis.
37.
The mother has paid no support for the
children,
although
she
has
been
physically and financially able to pay
some amount to defray the cost of the
children’s care. She has offered no just
cause or excuse for her failure to
provide support.
With respect to finding number 33, the beginning portion of
this finding is not supported by the evidence in the record.
The
beginning of this finding states that, “[a]lthough the mother had
opportunities to visit with the children before March, 2008, she
went from July, 2007 until February, 2008 and had no contact with
the children.”
The only evidence presented at the termination
-15hearing suggests that respondent-appellant actually made attempts
to set up visitation, but DSS was responsible for the delay.
Respondent-appellant testified that she made the requests for
visitation to Ms. Stockwell, but Ms. Stockwell did not testify at
the hearing.
Thus, DSS did not offer any testimony to contradict
respondent-appellant’s testimony.
Indeed, the social worker that
testified was not even assigned to respondent-appellant until March
2008, at which point the relevant time period under N.C. Gen. Stat.
§ 7B-1111(a)(7) had passed.
While Ms. Severt was able to testify,
based on DSS records, that respondent-appellant had two visits with
three of the children in February 2008, she offered no testimony to
support the finding that respondent-appellant made no attempt to
visit with the children prior to February 2008.
Nor did she offer
any other details regarding respondent-appellant’s behavior during
the relevant six month time period.
Therefore, we are left with evidence that respondent-appellant
had two visits in February 2008 with three of her children, despite
her previous efforts to schedule visitation. After the two visits,
DSS ceased visitation.
Although respondent-appellant’s conduct at
the visits purportedly led to the cessation of visitation, this
conduct is not evidence that respondent-appellant “manifest[ed] a
willful determination to forego all parental duties and relinquish
all parental claims to the child.”
See Young, 346 N.C. at 251, 485
-16S.E.2d at 617.
Indeed, her comments to the children are evidence
the
that
contrary,
she
wanted
the
children
back.
Although
respondent-appellant had certain failings, her actions do not rise
to the level of willful abandonment, in light of her two visits,
her
attempts
to
schedule
visits,
pertinent hearings in the matter.
and
her
attendance
at
all
See Bost v. Van Nortwick, 117
N.C. App. 1, 19, 449 S.E.2d 911, 921 (1994) (finding no willful
abandonment
where
parent
visited
the
children
at
Christmas,
attended three soccer games, and indicated that he wanted to
arrange support payments for the children and regular visitation),
appeal dismissed, 340 N.C. 109, 458 S.E.2d 183 (1995).
We further note that many of the trial court’s findings of
fact are not relevant to the willful abandonment ground.
instance,
many
of
the
findings
of
fact
address
For
respondent-
appellant’s behavior in the time period subsequent to the filing of
the petition.
evidence
is
Under the plain language of the statute, such
not
relevant
to
the
determination
of
respondent-appellant willfully abandoned the children.
Gen. Stat. § 7B-1111(a)(7).
whether
See N.C.
Additionally, many of the findings of
fact are focused on respondent-appellant’s progress on her case
plan.
We have previously suggested that such findings are “not of
great relevance for a determination of willful abandonment pursuant
to N.C. Gen. Stat. § 7B-1111(a)(7)” and are “more appropriately
-17considered as a grounds for termination pursuant to N.C. Gen. Stat.
§ 7B-1111(a)(2).”
47, 52 (2009).
In re S.R.G., ___ N.C. App. ___, ___, 671 S.E.2d
Based on DSS’s failure to call Ms. Stockwell as a
witness and its misplaced emphasis on events occurring after March
2008, we find that DSS failed to present sufficient evidence
corresponding
to
the
statutory
requirements
for
establishing
willful abandonment.
In conclusion, we determine that the trial court’s factual
findings do not support its legal conclusions that grounds under
N.C. Gen. Stat. § 7B-1111(a)(1) and (a)(7) existed to terminate
respondent-appellant’s
contains
evidence
parental
which
casts
rights.
doubt
Although
on
the
record
respondent-appellant’s
ability to parent, the trial court’s findings of fact are not
sufficient to support findings of neglect and willful abandonment.
Accordingly,
we
reverse
the
order
terminating
respondent-
appellant’s parental rights. Because we have reversed the order on
these grounds, we need not address respondent-appellant’s challenge
to the disposition order.
Reversed.
Judge STEPHENS and ERVIN concur.
Report per Rule 30(e).
