Matter of Montgomery

Annotate this Case

316 S.E.2d 246 (1984)

In the Matter of D. MONTGOMERY, a minor female child; S. Maxwell, a minor female child; A. Maxwell, a minor female child; and D. Maxwell, a minor male child.

No. 345PA83.

Supreme Court of North Carolina.

June 5, 1984.

*249 Woodall, McCormick & Felment, P.A. by Edward H. McCormick, Lillington, for petitioner-appellant.

O. Henry Willis, Jr., Dunn, for respondents-appellees.

Rufus L. Edmisten, Atty. Gen. by David R. Minges, Associate Atty. Gen., and Jane Rankin Thompson, Asst. Atty. Gen., Raleigh, appearing as amicus curiae for the State.

Ruff, Bond, Cobb, Wade & McNair by William H. McNair and Moses Luski, Charlotte, appearing as amicus curiae for Mecklenburg County Dept. of Social Services.

COPELAND, Justice.


The Court of Appeals, in In re Montgomery, 62 N.C.App. 343, 303 S.E.2d 324 (1983), reversed the trial judge's judgment terminating parental rights on the grounds of neglect pursuant to N.C.Gen.Stat. § 7A-289.32(2). That court held that the clear, cogent, and convincing evidence standard of proof requires the party seeking termination of parental rights for neglect to prove not only that the physical and economic needs of the child are not adequately met, but also that the intangible non-economic needs of a child are not adequately met. The petitioner argues that the Court of Appeals committed error by engrafting this new "non-economic" or "non-physical indicia" test onto the requirements for establishing grounds for terminating parental rights. For the following reasons, we agree.

This case involves the interpretation of the Termination of Parental Rights Act, Chapter 7A, Article 24B of the General Statutes, specifically N.C.Gen.Stat. § 7A-289.32 which provides in pertinent part:

Grounds for terminating parental rights. The court may terminate the parental rights upon a finding of one or more of the following: (2) The parent has abused or neglected the child. The child shall be deemed to be abused or neglected if the court finds the child to be an abused child within the meaning of G.S. 7A-517(1), or a neglected child within the meaning of G.S. 7A-517(21).... (4) The child has been placed in the custody of a county department of social services, a licensed child-placing agency, or a child-caring institution, and the parent, for a continuous period of six months next preceding the filing of the petition, has failed to pay a reasonable portion of the cost of care for the child.... (7) That the parent is incapable as a result of mental retardation, mental illness, organic brain syndrome, or any other degenerative mental condition of providing for the proper care and supervision of the child, such that the child is a dependent child within the *250 meaning of G.S. 7A-517(13), and that there is a reasonable probability that such incapability will continue throughout the minority of the child.

The statute referred to in subsection (2) of the above-quoted statute, N.C.Gen.Stat. § 7A-517(21), appears as follows:

(21) Neglected Juvenile. A juvenile who does not receive proper care, supervision, or discipline from his parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care or other remedial care recognized under State law, or who lives in an environment injurious to his welfare, or who has been placed for care or adoption in violation of law.

In its opinion, the Court of Appeals reasoned that the North Carolina statutory definition of neglect is "sufficiently broad to allow interpretation by the courts ..." Although we agree that the appellate courts, in applying our statutes to the particular case being considered, often must construe these broadly worded statutes, we also acknowledge that our courts are restrained by the bounds of legislative intent. Mazda Motor v. Southwestern Motors, 296 N.C. 357, 250 S.E.2d 250 (1979). However, after our careful reading of the statute, we must conclude that the Court of Appeals, in contravention of our Legislature's intent, erroneously elevated the burden of proof required in proceedings terminating parental rights.

The Court of Appeals, in Montgomery, prefaced its opinion with a brief summarization of the "due process evolution" in the area of parental rights, particularly highlighting the United States Supreme Court cases of Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972) and Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Those cases stand for the premise that the parents' right to retain custody of their child and to determine the care and supervision suitable for their child, is a "fundamental liberty interest" which warrants due process protection. Id., at 758-59, 102 S. Ct. at 1396-97, 71 L. Ed. 2d at 610. Both Stanley and Santosky, as the Court of Appeals correctly noted, confine their consideration to procedural due process matters. However, the Court of Appeals interpreted Santosky as requiring a petitioner to establish that a child's intangible, non-economic needs were not being fulfilled by his or her parents before said parents' parental rights could be terminated. That court opined the following:

Nevertheless, the [United States Supreme] Court appeared to endorse an approach that would take into account more than physical or economic factors; an approach that would reflect some consideration by the trial judge of all the circumstances of the parent-child relationship in each individual case. The [United States Supreme] Court noted that termination proceedings "often required the fact finder to ... decide issues difficult to prove to a level of absolute certainty, such as lack of parental motive, absence of affection between parent and child, and failure of parental foresight and progress. Id. at 769, 102 S. Ct. 1388, 1402, 81 [sic] L.Ed.2d 599. Santosky implicitly demands serious consideration of the unquantifiable attributes of the parent-child relationship that warrant its protected status under the Due Process clause.

Montgomery at 348, 303 S.E.2d at 327.

Certainly neither we nor our learned lawmakers dispute the importance of love, affection and other intangible qualities that exist in the normal familial relationships. In fact the General Assembly has clearly expressed their desire to ensure that children receive that "degree of care which promotes [their] healthy and orderly physical and emotional well-being." N.C.Gen. Stat. § 7A-289.22(1). Section (2) of that statute further articulates that:

(2) It is the further purpose of this Article to recognize the necessity for any child to have a permanent plan of care at the earliest possible age, while at the same time recognizing the need to protect all children from the unnecessary *251 severance of a relationship with biological or legal parents. (Emphasis added.)

The Legislature has properly recognized that in certain situations, where the grounds for termination could be legally established, the best interests of the child, considering the intangibles, indicate that the family unit should not be dissolved.

N.C.Gen.Stat. § 7A-289.31(a) and (b), which governs the disposition stage of a termination proceeding, provide that the trial court may elect not to terminate parental rights if the best interests of the child require such a result:

(a) Should the court determine that any one or more of the conditions authorizing a termination of the parental rights of a parent exist, the court shall issue an order terminating the parental rights of such parent with respect to the child unless the court shall further determine that the best interests of the child require that the parental rights of such parent not be terminated. [Emphasis added.] (b) Should the court conclude that irrespective of the existence of one or more circumstances authorizing termination of parental rights, the best interests of the child require that such rights should not be terminated, the court shall dismiss the petition, but only after setting forth the facts and conclusions upon which such dismissal is based.

In sum, where there is a reasonable hope that the family unit within a reasonable period of time can reunite and provide for the emotional and physical welfare of the child, the trial court is given discretion not to terminate rights.

Furthermore, with respect to termination proceedings, our statutes provide additional procedures, consistent with due process, to protect the various interests of the parties involved. In every contested case, a guardian ad litem must be appointed to represent the "best interests of the child." See: N.C.Gen.Stat. § 7A-289.29. In cases such as the one at present, a parent has the right to the representation of an appointed guardian ad litem "where it is alleged that a parent's rights should be terminated pursuant to G.S. 7A-289.32(7) ..." N.C.Gen.Stat. § 7A-289.23. Also our statutes provide the parent with appointed counsel during the disposition phase, Id. and N.C.Gen.Stat. § 7A-451(a)(14) and (15), as well as the right to appeal. N.C.Gen.Stat. § 7A-289.34.

We are satisfied that the Termination of Parental Rights statute as drafted provides an appropriate forum to address the "intangible needs" issue, as well as protects a parent's interest in preserving the family. Thus, the Court of Appeals' expansion of the grounds for terminating parental rights was unnecessary and improper.

We must further hold that the Court of Appeals' determination, that due process requires a separate and distinct finding regarding the adequate fulfillment of a child's intangible and non-economic needs, is not justified. This Court has not found it constitutionally necessary to develop such an additional requirement to justify termination for neglect. In our case of In re Moore, 306 N.C. 394, 293 S.E.2d 127, reh. denied, 306 N.C. 565 (1982); appeal dismissed sub nom. Moore v. Dept. of Social Services, 459 U.S. 1139, 103 S. Ct. 776, 74 L. Ed. 2d 987 (1983), decided subsequent to Santosky, we were asked to determine whether the neglect ground for termination, as stated in N.C.Gen.Stat. § 7A-289.32(2), satisfied the requirements of substantive due process. This Court in Moore upheld the constitutionality of the definition of neglect without revising the statutory language.

Our discussion would not be complete unless we re-emphasized the fundamental principle underlying North Carolina's approach to controversies involving child neglect and custody, to wit, that the best interest of the child is the polar star. The fact that a parent does provide love, affection and concern, although it may be relevant, should not be determinative, in that the court could still find the child to be *252 neglected within the meaning of our neglect and termination statutes. Where the evidence shows that a parent has failed or is unable to adequately provide for his child's physical and economic needs, whether it be by reason of mental infirmity or by reason of willful conduct on the part of the parent, and it appears that the parent will not or is not able to correct those inadequate conditions within a reasonable time, the court may appropriately conclude that the child is neglected. In determining whether a child is neglected, the determinative factors are the circumstances and conditions surrounding the child, not the fault or culpability of the parent. Therefore, the fact that the parent loves or is concerned about his child will not necessarily prevent the court from making a determination that the child is neglected. As we stated in Wilson v. Wilson, 269 N.C. 676, 678, 153 S.E.2d 349, 351 (1967), "[t]he welfare or best interest of the child is always to be treated as the paramount consideration to which even parental love must yield...."


We shall combine, for our purposes, the petitioner's next two assignments of error regarding the Court of Appeals' review of the trial judge's findings and conclusions.

The proper evidentiary standard of proof in termination of parental rights proceedings, according to the Santosky holding, is clear and convincing evidence. Showing great foresight, the North Carolina General Assembly prior to the Santosky decision amended our termination statute to require a similar "clear, cogent, and convincing" standard. See: N.C.Gen.Stat. § 7A-289.30(e). It is well established that "clear and convincing" and "clear, cogent, and convincing" describe the same evidentiary standard. See: 30 Am.Jur.2d, Evidence § 1167. This intermediate standard is greater than the preponderance of the evidence standard required in most civil cases, but not as stringent as the requirement of proof beyond a reasonable doubt required in criminal cases. Santosky 455 U.S. at 745, 102 S. Ct. at 1388, 71 L. Ed. 2d at 599. Our termination statute provides for a two-stage termination proceeding. N.C.Gen.Stat. § 7A-289.30, entitled "Adjudication Hearing on Termination," governs the adjudication stage and provides:

(d) The court shall take the evidence, find the facts, and shall adjudicate the existence or non-existence of any of the circumstances set forth in G.S. § 7A-289.32 which authorizes the termination of parental rights of the respondent. (e) All findings of fact shall be based on clear, cogent, and convincing evidence.

N.C.Gen.Stat. § 7A-289.31 governs the disposition stage of a termination proceeding, and provides in pertinent part that:

(a) Should the court determine that any one or more of the grounds for termination of the parental rights of a parent exist, the court shall issue an order terminating the parental rights of such parent with respect to the child unless the court shall further determine that the best interests of the child require that the parental rights of such parent not be terminated.

When read together, we construe these sections to mean that in the adjudication stage, the petitioner must prove clearly, cogently, and convincingly the existence of one or more of the grounds for termination listed in N.C.Gen.Stat. § 7A-289.32. Once the petitioner has proven this ground by this standard, it has met its burden within the statutory scheme of N.C.Gen.Stat. § 7A-289.30(d) and (e) and § 7A-289.31(a). The petitioner having met his burden of proof at the adjudication stage, the court then moves on to the disposition stage, where the court's decision to terminate parental rights is discretionary.

In the case sub judice, the trial court made certain findings of facts based on the evidence presented. Although the question of the sufficiency of the evidence to support the findings may be raised on appeal, see N.C.Gen.Stat. § 1A-1, Rule 52 of the Rules of Civil Procedure, our appellate courts are bound by the trial courts' findings of fact where there is some evidence to support those findings, even *253 though the evidence might sustain findings to the contrary. Williams v. Pilot Life Ins. Co., 288 N.C. 338, 218 S.E.2d 368 (1975); see also: 1 Strong, N.C.Index 2d, Appeal and Error, § 57.3. In cases involving a higher evidentiary standard, such as in the case sub judice, we must review the evidence in order to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law. In re Moore, at 404, 293 S.E.2d at 133.

Here, the Court of Appeals vacated the trial judge's order to terminate the respondents' parental rights based upon its determination that there was insufficient evidence of neglect to support the judge's findings and conclusions. After giving careful consideration to the entire record, we hold that there exists substantial evidence in support of the neglect findings and conclusions.

We note at the outset that our appellate courts should refrain from accepting as facts of a case, findings that are not part of the record on appeal. It appears that the opinion of the Court of Appeals stated findings which do not appear in the trial court's findings of fact. These findings are:

The poverty of the respondent-appellants is at least partially due to a desire to be self-reliant and not dependent on public assistance. Respondent-appellant Maxwell's failed venture into hog farming, while it indicated a lack of business judgment, was nonetheless rooted in a desire to better provide for his family. Testimony from respondent-appellant Montgomery, the mother, indicated no inability to properly look to the needs of her children.... Her failure to compel their regular attendance at school, which we do not condone, was at least partially attributable to her illness and not due to any failure to recognize the value of education... The respondent-appellants kept most of the scheduled visits with their children after they were placed in foster care; any failures were due to legitimate transportation problems and were usually accompanied by a long distance telephone call to inform the Department of Social Services of their problem.... The children are healthy and emotionally well-adjusted, evidence of the parents' ability to provide them with adequate physical, emotional and psychological nuturing.

Montgomery at 352-3, 303 S.E.2d at 329.

In summary the trial court found the acts of neglect in this case to include:

1Failure to send the three school age children to school with resulting poor grades. The children each missed school for over 30 days. 2Failure to provide beds and adequate living space for the children during the period October 79 to August 80 (prior to removal of the children from the home) even though financial resources were available to the parents. 3During August of 1980, the parents were separated and were providing no place at all for the children. 4Prior adjudication of neglect. 5The mother was unstable, delusional (believed that she could have a baby even though she had had a hysterectomy and believed that someone or something was trying to get inside of her) was nervous, failed to take medicine to control her condition and gets angry at her children when she does not take her medicine and that this condition causes problems between her and her husband when the children lived with them and that she yells at the children because of it. 6That the parents lacked the ability to care for the children and this inability will continue throughout the minority of the children.

Judge Greene gave patient and careful consideration to the evidence. His observation of the parties and the witnesses provided him with an opportunity to evaluate the situation that cannot be revealed on printed page. Whether these four minor children were inadequately cared for, within the statutory definition of neglect, was a question for the trier of fact, with the *254 burden of proof being upon the petitioner. The pages of testimony supply ample and competent evidence to support the trial court's findings of neglect, and they are binding upon us on appeal, even though there may be evidence contra. Hice v. Hi-Mil, Inc., 301 N.C. 647, 273 S.E.2d 268 (1981).

The trial court also found as fact that the four children had been placed in the custody of the Harnett County Department of Social Services, and that the father, "for a continuous period of six months next preceding the filing of the petition, has failed to pay a reasonable portion of the cost of care of the [children]." This finding was made with regard to petitioners' attempt to establish the fourth ground of termination for neglect of N.C.Gen.Stat. § 7A-289.32. The Court of Appeals, misinterpreted the language of the statute in their holding that a petitioner must establish the "reasonable needs of the child," and that a finding as to the cost of foster care failed to establish such reasonable needs. As we stated in In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981), "cost of care" refers to the amount it costs the Department of Social Services to care for the child, namely, foster care. Specific findings of fact as to the reasonable needs of the child are not required.

The Court of Appeals further determined that the trial judge erroneously concluded that Mr. Maxwell had not paid a reasonable portion of the costs of caring for the children, and that he had the ability to pay. That court reasoned that specific findings with respect to the needs of the children and to the earnings and standard of living of both the child and the parents were necessary. In Clark we addressed the issue of "reasonable portion" of the cost of care:

"... A parent's ability to pay is the controlling characteristic of what is a `reasonable portion' of [the] cost of foster care ... A parent is required to pay that portion of the cost of foster care ... 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. G.S. § 7A-289.32(4) requires a parent to pay a reasonable portion of the child's foster care costs. The requirement applies irrespective of the parent's wealth or poverty." (Emphasis added.)

Id., at 603-604, 281 S.E.2d at 55.

Here, the father respondent paid ninety dollars for the support of his four children over a forty-five week period. In other words that comes to about fifty cents per week per child. The father testified that his earnings ranged between $100.00 and $125.00 per week, and that he had enough money to venture $60.00 per week into a hog operation at a time when he knew of the $30.00 per week obligation. We believe there was ample evidence from which the trial court could conclude that respondent Maxwell failed to pay a reasonable portion of the costs of care of the children.


The petitioner raises for the first time on appeal, the constitutionality of subsection (7) of N.C.Gen.Stat. § 7A-289.32. Because we consider this question important to the public interest, we shall consider the merits of this issue, pursuant to Rule 2 of the Rules of Appellate Procedure.

The statute in question provides for the termination of parental rights upon a finding that "the parent is incapable as a result of mental retardation or mental illness of providing for the proper care and supervision of the child ... and that there is a reasonable probability that such incapability will continue throughout the minority of the child." N.C.Gen.Stat. § 7A-289.32(7). The respondents appellees argue that this section denies them their due process rights as well as equal protection under the law.

The constitutional analysis employed in In re Moore, 289 N.C. 95, 221 S.E.2d 307 (1976) to uphold the constitutionality of our *255 sterilization laws is analogous to the instant case. In Moore this court upheld, against due process and equal protection attack, a statutory provision which permitted a court ordered sterilization upon a finding "that because of a physical, mental, or nervous disease or deficiency which is not likely to materially improve, the person would probably be unable to care for a child or children." N.C.Gen.Stat. § 35-43. There, as here, we were concerned with the parents' ability to properly care for their children.

Many parental termination statutes are subject to constitutional scrutiny based on due process grounds. This termination statute requires not only notice and a hearing to the parents, N.C.Gen.Stat. § 7A-289.27 and 30, but it also provides other specific safeguards such as the right to present witnesses on one's own behalf, and the right to cross examine witnesses. A parent has a right to counsel and to appointed counsel in case of indigency, if not waived by the parent. N.C.Gen.Stat. § 7A-289.27. The Act also provides for the appointment of a guardian ad litem to represent the parent who suffers a diminished mental capacity. We believe the provisions of this statute adequately assure respondents, and those similarly situated, of procedural due process protection.

With regard to substantive due process, Justice Moore succinctly explained that "due process may be characterized as a standard of reasonableness and as such it is a limitation upon the exercise of the police power." Moore at 101, 221 S.E.2d at 311. The State in the legitimate exercise of its police power may, within constitutional limits, do what is necessary to "`protect or promote the health, morals, order, safety and general welfare of society.'" Moore at 101, 221 S.E.2d at 311, quoting State v. Ballance, 229 N.C. 764, 769, 51 S.E.2d 731, 734 (1949). For a statute to pass as constitutional, it must have a rational relation to the State's interests listed above. Protecting children from parental neglect is a sufficient reason to warrant State intervention in the traditional rights of parents to the care, custody and control of their children. The State has long practiced its role as parens patriae in determining what is in the best interest of neglected or abused children. See: Thomas, Child Abuse and Neglect, Part I: Historical Overview, Legal Matrix, And Social Perspectives, 50 N.C.L.Rev. 293 at 313 (1972). The courts in weighing the parent's rights against the child's best interest must follow the legislature's mandate that the child's welfare is paramount. The legislature has determined that a parent, because of his mental illness or retardation, may not be able to adequately provide for a child. We believe that termination of parental rights of those mentally ill or retarded parents determined incapable of caring for their child, when coupled with evidence of neglect, is a valid and reasonable exercise of the State's police power.

Respondent-appellees finally assert that this statute violates the equal protection clause of the Fourteenth Amendment. The objective of N.C.Gen.Stat. § 7A-289.32(7) is not to punish a parent for his or her particular condition, but to provide for the welfare of children. "The equal protection clauses of the United States and North Carolina Constitutions impose upon lawmaking bodies the requirement that any legislative classification `be based on differences that are reasonably related to the purposes of the Act in which it is found.'" [Citations omitted.] Moore at 104, 221 S.E.2d at 313. The purpose of the statute is to protect and promote the welfare of the child. The legislature has considered the very real possibility that a mentally ill or retarded individual may be unable to handle the responsibility of a child. We find there exists a reasonable relation between the classification perpetuated by subsection seven and the objective of the statute. Many courts in our sister states have held that a statutory scheme providing termination of parental rights on the grounds of mental illness or retardation of parents, does not violate equal protection. Annot., 22 A.L.R. 4th (1983).

*256 We conclude that N.C.Gen.Stat. § 7A-289.32(7), which provides for the termination of parental rights upon a showing that a child's parents are mentally incapable of providing for that child, is not unconstitutional. It does not violate the equal protection clause, nor does it deny due process.

In summary, we must emphasize that it is the child's best interests which is our guiding beacon. Although courts should balance the parents' inherent right to maintain their family unit with the welfare of the minor child, it is the latter that should always prevail, if it is determined that the two interests are conflicting. We conclude that the trial judge abided by this basic principle and adjudicated the proper results, with the exception of his determination of unconstitutionality of subsection seven of N.C.Gen.Stat. § 7A-289.32.

This case is reversed and remanded to the Court of Appeals, with orders that it reinstate the trial court's judgment, except with regard to its order concerning N.C.Gen.Stat. § 7A-289.32(7).