In re G.A.A. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1113
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
IN RE:
G.A.A. New Hanover County
No. 12 JT 171
Appeal by Respondent from order entered 11 July 2013 by
Judge Jeffrey E. Noecker in New Hanover County District Court.
Heard in the Court of Appeals 27 February 2014.
No brief for Petitioners.
Ryan McKaig for Respondent.
No brief for Guardian ad Litem.
STEPHENS, Judge.
Factual and Procedural Background
Respondent appeals from the order terminating his parental
rights to the minor child G.A.A. (“George”).1 We reverse.
1
The parties stipulated to the use of this pseudonym in order to
protect the identity of the juvenile.
-2-
George was born out-of-wedlock to petitioners’ daughter2 in
October 2010. As a result of his mother’s drug use, George was
undersized, hypotonic, and developmentally delayed. He
experienced severe difficulties with feeding, “oral tactile
defensiveness and aversion[,]” “moderately severe” acid reflux,
and a sensory processing disorder known as Self Regulation
Disorder. Because of this disorder, George requires an
environment that is extremely stable and predictable. At the
time of the termination hearing, George was two and one-half
years old and had attained the developmental level of a twelve-
month-old.
Petitioners are George’s maternal grandparents who have
provided a home for George and served as his primary caretakers
since his birth. Petitioner-grandmother is a pediatric nurse.
In addition to his multiple treatment providers, petitioners
employ a full-time nanny experienced with special-needs children
to care for George while they are at work.
Respondent was not listed as George’s father on the birth
certificate but established his paternity through genetic
testing in a child custody proceeding he initiated against
2
George’s mother was named as a respondent in the petition to
terminate parental rights, but according to the termination
order, is now deceased, and thus not a party to this appeal.
-3-
George’s mother in New Hanover County District Court.
Petitioners intervened in the custody proceeding and were
awarded sole legal and physical custody of George by order
entered 5 January 2012, nunc pro tunc to 31 October 2011. The
custody order includes a finding by the district court that
Respondent “acted inconsistently with his constitutionally
protected status” as George’s father, as evidenced by his lack
of contact with, and failure to provide support for, George in
his first year of life. Respondent was not determined to be
George’s legal father until entry of the 5 January 2012 custody
order.
When George was born, Respondent was living in
Pennsylvania, but he relocated in April 2012 to Wilmington and
then Myrtle Beach, South Carolina in order to be closer to
George.3 On 8 May 2012, Respondent was arrested and charged with
four offenses involving allegations of domestic violence against
his then-girlfriend. Respondent spent 120 days in jail before
3
Respondent testified he initially “came down to Wilmington and
then to Myrtle Beach[,]” but claimed he “couldn’t find housing
in Wilmington, where I intended to be for my son.” He stayed
briefly at a campground in Wilmington before moving to South
Carolina.
-4-
being released on bond in September 2012.4 On 30 September 2012,
he was arrested and charged with breach of the peace.
Petitioners filed a petition to terminate Respondent’s
parental rights on 28 June 2012. The district court heard
testimony from petitioners, Respondent, and a social worker from
the New Hanover County Department of Social Services, as well as
George’s pediatrician, occupational therapist, physical
therapist, speech pathologist, and nanny. Based on the
evidence, the court concluded that grounds existed for
termination of parental rights under N.C. Gen. Stat. § 7B-
1111(a)(1) (neglect), (2) (failure to make reasonable progress),
and (7) (abandonment).5 The court further concluded that
George’s best interests would be served by terminating
Respondent’s parental rights. Respondent gave timely notice of
appeal from the order.
4
The 8 May 2012 charges were pending at the time of the
termination hearing.
5
The district court made a finding of fact that the petition
alleged grounds existed under subsections (1), (2), (4) (willful
failure to pay reasonable support), and (6) (dependency) of N.C.
Gen. Stat. § 7B-1111(a) (2013). However, the petition does also
allege that Respondent “willfully abandoned [George] for at
least six [] consecutive months” prior to the petition’s filing,
the ground for termination set forth in subsection (7). See
N.C. Gen. Stat. § 7B-1111(a)(7). We also note that the
termination order consistently cites the termination statute as
“N.C.G.S. § 7B-111.”
-5-
Discussion
Respondent argues that the district court erred in finding
that grounds for termination existed pursuant to section 7B-
1111(a)(1) (neglect), (2) (failure to make reasonable progress),
(6) (dependency), and (7) (abandonment) and erred in concluding
that termination was in the best interests of George. We agree.
We review an order terminating parental rights to determine
whether the district court’s findings of fact are supported by
clear, cogent, and convincing evidence and whether the
conclusions of law are supported by the findings of fact. In re
Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6, disc. review
denied, 358 N.C. 543, 599 S.E.2d 42 (2004). Conclusions of law
are reviewed de novo. In re S.N., 194 N.C. App. 142, 146, 669
S.E.2d 55, 59 (2008), affirmed per curiam, 363 N.C. 368, 677
S.E.2d 455 (2009).
I. Neglect
Respondent first argues that the district court erred in
finding that grounds existed to terminate his parental rights
based upon his neglect of George. We agree.
Under section 7B-1111(a)(1), “[t]he trial court may
terminate the parental rights to a child upon a finding that the
parent has neglected the child.” In re Humphrey, 156 N.C. App.
-6-
533, 540, 577 S.E.2d 421, 427 (2003) (citation omitted). A
“neglected” juvenile is defined, inter alia, as one “who does
not receive proper care, supervision, or discipline from the
juvenile’s parent, . . .; or who has been abandoned; . . . or
who is not provided necessary remedial care; or who lives in an
environment injurious to the juvenile’s welfare[.]” N.C. Gen.
Stat. § 7B-101(15) (2013). “In addition, this Court has
required that there be some physical, mental, or emotional
impairment of the juvenile or a substantial risk of such
impairment as a consequence of the failure to provide proper
care, supervision, or discipline in order to adjudicate a
juvenile neglected.” In re E.P., 183 N.C. App. 301, 307, 645
S.E.2d 772, 775 (citation and internal quotation marks omitted),
affirmed per curiam, 362 N.C. 82, 653 S.E.2d 143 (2007).
“A finding of neglect sufficient to terminate parental
rights must be based on evidence showing neglect at the time of
the termination proceeding.” In re Young, 346 N.C. 244, 248,
485 S.E.2d 612, 615 (1997) (citation omitted; emphasis added).
Thus, if a child is in the custody of his parent at the time of
the termination proceeding, such a determination is made by
examining the parent’s care of the child at that time. However,
when, as is frequently the case in termination proceedings, the
-7-
child has been removed from his parent’s custody long before the
termination proceeding, courts 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).
[A] prior adjudication of neglect may be
admitted and considered by the trial court
in ruling upon a later petition to terminate
parental rights on the ground of neglect.
However, such prior adjudication, standing
alone, will not suffice where the natural
parents have not had custody for a
significant period prior to the termination
hearing. Therefore, the court must take
into consideration any evidence of changed
conditions in light of the evidence of prior
neglect and the probability of a repetition
of neglect.
In re Brim, 139 N.C. App. 733, 742, 535 S.E.2d 367, 372 (2000)
(citation and internal quotation marks omitted; alteration and
emphasis in original). In such cases, “a showing of a history
of neglect by the parent and the probability of a repetition of
neglect” is sufficient to establish grounds for termination
under section 7B-1111(a)(1). In re L.O.K., 174 N.C. App. 426,
435, 621 S.E.2d 236, 242 (2005) (citation and internal quotation
marks omitted; emphasis added).
Thus, in situations where the child has been removed from
the parent, the court considers the parent’s past neglect of the
-8-
child and whether the current circumstances suggest the neglect
probably will reoccur in the future. However, while a
“probability of a repetition of neglect” can constitute a ground
for termination, id., “parental rights may not be terminated for
threatened future harm” in the absence of any previous neglect.
In re Evans, 81 N.C. App. 449, 452, 344 S.E.2d 325, 327 (1986);
see also In re Phifer, 67 N.C. App. 16, 25-26, 312 S.E.2d 684,
689 (1984) (rejecting the petitioner’s “strenuous[] conten[tion]
that a threat of future harm is sufficient grounds for
termination of parental rights”).6
Here, George has never been adjudicated a neglected
juvenile as defined in section 7B-101(15). The custody order
does not contain any findings that Respondent neglected George
in the past. Respondent has never had custody of George, and
George has never lived with Respondent. Instead, George has
6
Under the Juvenile Code then in effect, a neglected child was
defined as one 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.” N.C. Gen. Stat. § 7A-517(21) (1981). This
language is virtually identical to that in current section 7B-
101(15) and nothing suggests the relevant reasoning employed in
In re Phifer would be inapplicable to determinations of neglect
under section 7B-101(15).
-9-
lived with petitioners from birth, with the exception of a few
brief periods when it appears his mother (petitioners’ daughter)
left petitioners’ home and took George with her.7 The
termination order contains no findings of fact regarding any
“physical, mental, or emotional impairment of” George due to the
actions or omissions of Respondent. In re E.P., 183 N.C. App.
at 307, 645 S.E.2d at 775.
In support of its adjudication of neglect under N.C. Gen.
Stat. § 7B-1111(a)(1), the district court made the following
findings of fact:
11. The minor child was placed in the care
and custody of [p]etitioners by prior
court order and Respondent was found to
have acted inconsistently with his
constitutionally protected status as a
parent of the minor child at issue
herein. Respondent was also found to be
unfit to provide for the care and
custody of the minor child at the time
of the custody order noted herein above
dated January 5, 2012.
12. Based on the findings of fact herein and
pursuant to [section] 7B-111[1] et[]
seq., grounds exist to terminate the
parental rights of Respondent to the
minor child as follows:
7
The record does not reveal the exact details of these
occasions, but the termination order notes that George had lived
with petitioners for more than two of his two and one-half years
of life at the time of the proceeding and nothing in the record
suggests that George ever resided with Respondent.
-10-
. . .
(c) In accordance with [section] 7B-
111[1](a)(1)[,] (2), Respondent
neglected the juvenile in numerous
ways, including but not limited to:
. . .
iii. Respondent is incapable of
providing for the proper care and
supervision [of the child] and the
child would live in an injurious
environment if in [] Respondent’s
care such that the juvenile is a
neglected juvenile within the
meaning of [section] 7B-101, and
there is a reasonable probability
that such incapability will
continue for the foreseeable
future.
. . .
v. Through evidence of his past
behavior and current behavior,
Respondent’s actions detail that
he has largely untreated mental
health issues including major
depression, post-traumatic stress
disorder, anger management issues,
and tendencies towards aggressive
and violent behavior. Although
Respondent has been in therapeutic
counseling for the past eight
months, which began after his most
recent incarceration, he is not
taking medications previously
prescribed to assist him in the
management of these illnesses.
vi. From the date of the minor child’s
birth, through the time that the
Petition was filed, Respondent
-11-
made one payment of $50.00 and
sent gifts in the form of clothing
and Christmas gifts to
[p]etitioners for the child.
Respondent has never paid for any
of the minor child’s specialized
medical needs.
vii. Respondent has prior allegations
of domestic violence against the
mother of the minor child, which
he was later found not guilty of
at trial. After moving to Myrtle
Beach the police were called to a
gas station due to a conflict
between Respondent and his then
girlfriend. . . .
viii. Shortly after the incident at the
gas station . . . , Respondent had
another incident with the same
girlfriend . . . . From said
incident, Respondent has current
pending criminal charges of
Kidnapping, Pointing and
Presenting Firearms at a Person,
Possession of a Weapon During a
Violent Crime, and Criminal
Domestic Violence of a High and
Aggravated Nature. One of the
allegations against him was that
he pointed a loaded weapon at the
head of his girlfriend at the time
and law enforcement noticed marks
on her neck, which Respondent
believes she inflicted on herself.
ix. Once released from incarceration
on the above noted charges,
Respondent was arrested again for
disturbing the peace in Myrtle
Beach.
x. In addition to the current pending
-12-
charges, Respondent’s criminal
record over the past number of
years includes multiple charges
for which he either plead[ed]
guilty or was found guilty which
include violent offenses and
illegal substance charges. . . .
xi. Respondent has suffered
significant residential
instability. . . .
xii. While in South Carolina,
Respondent lived in no less than
six (6) separate residences,
generally renting on a week[-]to[-
]week basis. He rarely stayed in
any rental for a month, often . .
. reporting problems with
neighbors or landlords.
Respondent slept on a bench in a
church playground for . . . one
night after release from
incarceration.
xiii. Respondent suffers from
relationship instability. . . .
xiv. The conditions in Respondent’s
life all combine so that he did
not make reasonable progress
towards correcting his
circumstances. . . .
xv. Although [R]espondent has not had
placement of the minor child, due
to his residence instability,
untreated mental health,
incarcerations, and violent
altercations, had the minor child
been with him, it is presumed the
child would have been neglected.
Respondent’s instability,
violence, and other conditions
-13-
noted herein would likely have led
to G[eorge] not receiving proper
care, supervision, or having his
needs adequately met.
xvi. All the findings are overlain by
the substantial nature of the
minor child’s medical issues.
G[eorge] is a fragile child with
excessive special needs, requiring
daily and intensive special needs
which Respondent cannot meet and
has not made any reasonable
efforts to be able to meet,
despite having knowledge of the
child’s special needs from
[p]etitioners.
xvii. Respondent asserted that due to
his criminal allegations, he is
not in a position to have custody
of the minor child at this time.
However, he stated that he
believes with additional time he
could.
xviii. Respondent has attended a
significant number of counseling
sessions, has attended physical
therapy sessions, and has recently
started sessions with a parenting
counselor. The Court finds that
despite those efforts, Respondent
has not shown reasonable progress
to fix the conditions which caused
the court to determine that he
acted contrary to his
constitutionally protected status
as a parent in the underlying
custody matter.
. . .
xx. . . . . Respondent did not take
-14-
the opportunities that he was
offered [to visit George]. . . .
Prior to the filing of the
Petition, Respondent had only
attended three (3) visitation
times with the minor child.
xxi. Respondent could have requested
additional visitation during the
time noted herein . . . until
[p]etitioners ceased any and all
visitation between Respondent and
the minor child due to the
Respondent’s pending criminal
allegations. Respondent indicated
to the Court that it was not
practical to travel to North
Carolina from Pennsylvania for
short four[-]hour visit[s], nor
[was it] financially feasible.
(Emphasis added). The court further found “a high probability
of repetition of neglect of the minor child, if the minor child
were in the care of the Respondent[,]” even though there was no
finding of any prior neglect.
These findings of fact are insufficient to support a
determination of neglect as a ground for termination of
Respondent’s parental rights to George.8 As shown in the
emphasized portions of the order quoted supra, the court found
only a “presumed” hypothetical risk that George would have been
8
These findings would perhaps support the conclusion that
grounds for termination of Respondent’s parental rights existed
based upon George’s dependency pursuant to section 7B-
1111(a)(6). This ground for termination is addressed in section
III below.
-15-
neglected if he had been in Respondent’s care and, on the basis
of that hypothetical risk, the trial court then presumed a
future risk of neglect. Thus, both the evidence and the
district court’s findings of fact are insufficient to establish
neglect as a ground for termination under N.C. Gen. Stat. § 7B-
1111(a)(1). See In re Evans, 81 N.C. App. at 452, 344 S.E.2d at
327 (holding that “parental rights may not be terminated for
threatened future harm” in the absence of any previous neglect).
II. Failure to make reasonable progress
Respondent next argues that the district court erred in
finding that grounds existed to terminate his parental rights
under subsection (2), to wit, that Respondent “willfully left
the juvenile in foster care or placement outside the home for
more than 12 months without showing to the satisfaction of the
court that reasonable progress under the circumstances has been
made in correcting those conditions which led to the removal of
the juvenile.” N.C. Gen. Stat. § 7B-1111(a)(2). Again, we
agree.
“Where the ‘more than twelve months’ threshold requirement
in [section] 7B-1111(a)(2) did not expire before the motion or
petition was filed, a termination on this basis cannot be
sustained. Indeed, this threshold requirement is related to the
-16-
court’s jurisdiction or authority to act.” In re A.C.F., 176
N.C. App. 520, 527, 626 S.E.2d 729, 735 (2006) (citation and
footnote omitted). This Court also specified that the twelve-
month period does not begin to run until after “a court has
entered a court order requiring that a child be in foster care
or other placement outside the home.” Id. at 525-26, 626 S.E.2d
at 734 (emphasis omitted).
Here, the order giving custody of George to petitioners was
entered 3 January 2012, nunc pro tunc to 31 October 2011.
Petitioners filed the petition to terminate Respondent’s
parental rights on 28 June 2012. Thus, twelve months had not
elapsed between entry of the custody order and the filing of the
petition for termination. Accordingly, termination of
Respondent’s parental rights on the basis of subsection (2)
cannot be sustained.
III. Dependency
Respondent also argues that the district court erred in
terminating his parental rights based upon George’s dependency.
Subsection (6) provides that a ground for termination of
parental rights exists when
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 [section] 7B-
-17-
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-1111(a)(6). In turn, section 7B-101
defines a dependent juvenile as “[a] juvenile in need of
assistance or placement because (i) the juvenile has no parent,
guardian, or custodian responsible for the juvenile’s care or
supervision or (ii) the juvenile’s parent, guardian, or
custodian is unable to provide for the juvenile’s care or
supervision and lacks an appropriate alternative child care
arrangement.” N.C. Gen. Stat. § 7B-101(9).
As noted in footnote 8 supra, portions of findings of fact
11 and 12(c) could support the conclusion that a ground to
terminate parental rights existed under section 7B-1111(a)(6)
because George was a dependent child as defined in section 7B-
101(9). However, finding of fact 12(b) explicitly states that,
“[i]n accordance with [section 7B-1111](a)(6), [p]etitioners did
not meet their burden.” (Emphasis added). This is tantamount
to a finding that no clear, cogent, and convincing evidence was
-18-
offered to support a conclusion that George was a dependent
child.
Further, the termination order does not conclude that
dependency exists as a basis to terminate Respondent’s parental
rights. Rather, conclusion of law 4 merely states that
“Respondent is incapable of providing for the proper care and
supervision of [George] while in his care so that [George] is a
dependent juvenile within the meaning of [section] 7B-101.” In
contrast, conclusions of law 3 and 5 each begin, “Pursuant to
[section] 7B-111[1] et[] seq., grounds exist to terminate the
parental rights of . . . Respondent” before going on to state
the grounds of neglect, abandonment, and failure to make
reasonable progress. This distinction, in combination with the
explicit statement in finding of fact 12(b), suggests that the
district court did not intend to conclude that dependency could
serve as a ground for the termination of Respondent’s parental
rights to George. Even if we were to interpret conclusion of
law 4 as referring to dependency as a ground for termination of
parental rights, in light of finding of fact 12(b), we cannot
hold that this conclusion of law is supported by the findings of
fact as they appear in the order. In re Shepard, 162 N.C. App.
at 221, 591 S.E.2d at 6.
-19-
IV. Abandonment
Respondent also argues that the district court erred in
finding that grounds existed to terminate his parental rights
based upon his abandonment of George. We agree.
Parental rights may be terminated when “[t]he parent has
willfully abandoned the juvenile for at least six consecutive
months immediately preceding the filing of the petition . . . .”
N.C. Gen. Stat. § 7B-1111(a)(7). “Abandonment implies conduct
on the part of the parent which manifests a willful
determination to forego all parental duties and relinquish all
parental claims to the child.” In re Adoption of Searle, 82
N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986) (citation
omitted). Willfulness is “more than an intention to do a thing;
there must also be purpose and deliberation.” Id. (citation
omitted).
A judicial determination that a parent
willfully abandoned h[is] child,
particularly when we are considering a
relatively short six[-]month period, needs
to show more than a failure of the parent to
live up to h[is] obligations as a parent in
an appropriate fashion; the findings must
clearly show that the parent’s actions are
wholly inconsistent with a desire to
maintain custody of the child.
In re S.R.G., 195 N.C. App. 79, 87, 671 S.E.2d 47, 53 (2009)
(citation omitted; emphasis added).
-20-
Here, our task is complicated due to the lack of dates in
many of the findings of fact in the termination order which
discuss Respondent’s actions relevant to assessing his desire to
remain George’s father. However, the unchallenged findings of
fact reveal the following: Up until seven months before the
petition was filed, Respondent was engaged in the custody action
which he initiated and which certainly indicates a strong desire
to maintain his parental rights. After George’s birth,
Respondent moved from Pennsylvania to live closer to George,
established paternity, made at least one support payment, and
sent clothing and other gifts to George. Respondent
acknowledged that his pending criminal allegations prevented him
from having custody of George, but expressed hope that he could
regain custody in the future. Respondent “attended a
significant number of counseling sessions” and parenting
sessions. Indeed, the district court found that “Respondent has
expressed a desire and a demand to visit and maintain rights to
contact [George]. He has appeared in court and asserted his
rights.” We simply do not believe that Respondent’s “actions
are wholly inconsistent with a desire to maintain custody of”
George. See In re S.R.G., 195 N.C. App. at 87, 671 S.E.2d at
53. The district court’s own findings of fact summarized supra
-21-
do not support its ultimate finding that Respondent abandoned
George.
V. Termination of parental rights
Because none of the grounds for termination found by the
district court are supported by the findings of fact, we need
not address Respondent’s argument that the district court erred
in concluding that it would be in George’s best interests to
terminate Respondent’s parental rights.
Conclusion
The district court’s findings of fact are not supported by
clear, cogent, and convincing evidence and do not support its
conclusions of law. See In re Shepard, 162 N.C. App. at 221,
591 S.E.2d at 6. Accordingly, the termination order is
REVERSED.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).