In re: S.J.T.H. , 258 N.C. App. 277 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1009
Filed: 6 March 2018
Cabarrus County, No. 17-JA-47
IN THE MATTER OF: S.J.T.H., Minor Child.
Appeal by respondent from order entered 28 June 2017 by Judge Christy E.
Wilhelm in District Court, Cabarrus County. Heard in the Court of Appeals 21
February 2018.
Hartsell & Williams, PA, by H. Jay White and Austin “Dutch” Entwistle III, for
petitioner-appellee Cabarrus County Department of Social Services.
Jeffrey L. Miller, for respondent-appellant.
Michael N. Tousey, for guardian ad litem.
STROUD, Judge.
Respondent appeals an adjudication and disposition order placing his son in
the custody of the Cabarrus County Department of Human Services and ordering him
to comply with certain conditions to gain custody. DSS presented no evidence
regarding respondent beyond that supporting paternity, and the trial court made no
substantive findings of fact about respondent other than those relevant to paternity.
The trial court’s findings and conclusions regarding the adjudication of neglect by the
IN RE: S.J.T.H.
Opinion of the Court
mother are not challenged on appeal. We affirm the adjudication of neglect, all
portions of the order regarding the mother, and the adjudication of paternity, but we
reverse the provisions of the order directing respondent to comply with the order’s
conditions and remand for entry of an order in compliance with respondent’s
constitutional and statutory rights as the minor child’s father.
I. Background
In February of 2017, Sam1 was born. Sam’s mother identified Abel as his
father and gave Sam Abel’s last name. Because of mother’s prior history with
Cabarrus County Department of Human Services (“CCDHS”) for her older child and
her ongoing drug abuse, Sam could not be released to her custody. Abel initially said
he would care for Sam but failed to show up when it was time for Sam’s discharge
from the hospital. Sam was placed with a family friend. In March of 2017,
respondent contacted CCDHS; he reported that he may be Sam’s father, and offered
to care for him. In April of 2017, CCDHS filed a petition which identified both Abel
and respondent as possible fathers, and alleged Sam was a neglected and dependent
juvenile based upon mother’s prior history with CCDHS and drug abuse; Sam was
placed in non-secure custody. In May of 2017, a paternity test confirmed that
respondent is Sam’s father. In June of 2017, the trial court adjudicated Sam’s
1 We will use pseudonyms for the child as well as the man Sam’s mother initially identified as
his father in order to protect the identity of the minor child.
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IN RE: S.J.T.H.
Opinion of the Court
paternity, adjudicated him as neglected based upon mother’s drug abuse and other
issues, and granted custody to CCDHS. CCDHS presented no evidence regarding
respondent other than basic identification information and evidence to establish
paternity.2 The order -- incorrectly titled as a consent order -- ordered respondent to
comply with the same eleven mandates as mother, including completing a substance
abuse assessment, undergoing random drug testing, participating in parenting
classes, and verifying that he had sufficient income. The order essentially makes no
distinction between mother and respondent although all of the evidence addressed
mother’s issues, including her drug abuse, criminal history, and prior CCDHS
involvement, with nothing presented about respondent, who had only been discovered
as Sam’s father in the prior month. Respondent appeals.
II. Adjudication Order
Respondent does not challenge the trial court’s adjudication of paternity nor
the adjudication of Sam as a neglected juvenile due to his mother’s actions and thus
we will not address those portions of the order and, they will remain in force. But
respondent challenges the remainder of the order to the extent that it addresses him,
particularly as to the trial court’s determination that Sam should not be released to
2The reports by CCDHS provided to the district court addressed mother’s circumstances at
length but did not address respondent’s circumstances or ability to care for the child at all. Despite the
absence of any information about respondent, CCDHS recommended exactly the same plan and
requirements for respondent as it did for mother. No additional information regarding respondent
was presented in testimony at the hearing.
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IN RE: S.J.T.H.
Opinion of the Court
his custody and the conditions placed on respondent. All of respondent’s challenges
would require us to analyze whether the evidence supports the trial court’s findings
of fact and conclusions of law regarding respondent. See generally In re McCabe, 157
N.C. App. 673, 679, 580 S.E.2d 69, 73 (2003) (“When an appellant asserts that an
adjudication order of the trial court is unsupported by the evidence, this Court
examines the evidence to determine whether there exists clear, cogent and convincing
evidence to support the findings.”)
As respondent points out, there was a total lack of evidence regarding him at
the adjudication hearing other than the evidence to establish paternity. Here, there
is nothing for this Court to analyze as the record and order are devoid of evidence and
findings of fact regarding respondent beyond establishing paternity. There was no
evidence about respondent’s ability to parent, his home life, his ability to provide for
Sam, or any other evidence a trial court must consider before finding a parent unfit
or determining custody. While CCDHS urges this Court to ignore respondent’s rights
as a father and instead consider Sam’s best interests, even a determination of his best
interests would require evidence about respondent.
A natural parent may lose his constitutionally
protected right to the control of his children in one of two
ways: (1) by a finding of unfitness of the natural parent, or
(2) where the natural parent’s conduct is inconsistent with
his or her constitutionally protected status. While this
analysis is often applied in civil custody cases under
Chapter 50 of the North Carolina General Statutes, it also
applies to custody awards arising out of juvenile petitions
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IN RE: S.J.T.H.
Opinion of the Court
filed under Chapter 7B.
In re D.M., 211 N.C. App. 382, 385, 712 S.E.2d 355, 357 (2011) (citations, quotation
marks, and brackets omitted). Our courts cannot presume a parent to be unfit or to
have acted inconsistently with his constitutional rights as a parent without clear,
cogent, and convincing evidence to demonstrate why the parent cannot care for his
child. See id.; see also McCabe, 157 N.C. App. at 679, 580 S.E.2d at 73. In D.M., the
minor child was only adjudicated as dependent and
DSS’s juvenile petition alleging dependency was based
solely on the actions of Dana’s mother and not respondent-
father. Here, the trial court specifically found that neither
parent is unfit to parent, and thus it could not award
permanent custody to the maternal grandmother in the
absence of findings of fact and conclusions of law that
respondent-father had acted inconsistently with his
constitutional rights as a parent. Because the trial court
failed to make any findings of fact or conclusions of law as
to whether respondent-father had acted inconsistently
with his parental rights, it erred in awarding permanent
custody to Dana’s maternal grandmother. Accordingly, we
reverse the 20 July 2010 order awarding custody of Dana
to her maternal grandmother.
Id. (citations, quotation marks, and brackets omitted).
In summary, the trial court’s adjudication of neglect and adjudication of
respondent as father of Sam remain undisturbed. Mother did not appeal and all
provisions of the order addressing mother remain in effect. We reverse the order to
the extent that it mandates any action by respondent and grants custody to CCDHS.
We remand this case for the trial court to enter a new order addressing respondent’s
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IN RE: S.J.T.H.
Opinion of the Court
rights and granting him custody unless DSS presents clear, cogent, and convincing
evidence which would support another disposition. Upon request by any party, the
trial court shall receive additional evidence on remand. Because we are reversing
and remanding the order in its entirety as to respondent, other than the adjudication
of paternity, we need not address respondent’s other issues on appeal.
III. Conclusion
Because there was no evidence presented regarding respondent other than
establishment of paternity and the trial court made no substantive findings of fact
regarding him beyond paternity, we reverse the order to the extent that it requires
any actions by respondent and grants custody to CCDHS. We affirm the adjudication
of neglect and of paternity.
AFFIRMED in part; REVERSED in part; REMANDED.
Judges DAVIS and ARROWOOD concur.
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