In re M.S. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-138
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
IN THE MATTER OF:
Beaufort County
M.S. No. 11 JA 91
Appeal by respondents from order entered 7 November 2013 by
Judge Regina R. Parker in Beaufort County District Court. Heard
in the Court of Appeals 29 May 2014.
Kimberly T. Edwards for petitioner-appellee Beaufort County
Department of Social Services.
Kilpatrick Townsend & Stockton LLP, by John M. Moye, for
guardian ad litem.
Edward Eldred for respondent-appellant mother.
Sydney Batch for respondent-appellant father.
STROUD, Judge.
Respondent-parents appeal from an order terminating their
parental rights to the minor child M.S. (“Mindy”).1 Because the
termination order lacks sufficient findings of fact to support
the trial court’s ultimate determination under N.C. Gen. Stat. §
1To protect the juvenile’s identity and for ease of reading we
will refer to her by pseudonym.
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7B-1111(a)(1), (2), and (6) (2013), we vacate the termination
order and remand.
I. Petition for Writ of Certiorari
Respondent-mother has filed a petition for writ of
certiorari asking this Court to review the termination order
notwithstanding her failure to designate the order from which or
court to which her appeal is taken, in accordance with N.C.R.
App. P. 3(d), as well as her failure to serve her notice of
appeal pursuant to N.C.R. App. P. 3(a), (e), and 26(c)-(d). See
N.C.R. App. P. 3.1(a); N.C. Gen. Stat. § 7B-1001(a)(6), (b)
(2013). Respondent-mother asks that she not be deemed to have
“forfeit[ed] her right to appeal due to her attorney’s error in
drafting a notice of appeal.” See N.C.R. App. P. 21(a)(1)
(authorizing review by writ of certiorari “when the right to
prosecute an appeal has been lost by failure to take timely
action”).
We conclude the appeal is properly before us. It is true
that “[a]n appellant’s failure to designate a particular
judgment or order in the notice of appeal generally divests this
Court of jurisdiction to consider that order.” Yorke v. Novant
Health, Inc., 192 N.C. App. 340, 347, 666 S.E.2d 127, 133
(2008), disc. rev. denied, 363 N.C. 260, 677 S.E.2d 461 (2009).
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Here, however, respondent-mother gave timely notice of appeal
from
all Findings of Fact, Conclusions of Law and
Orders of the Court entered pursuant to the
Beaufort County District Court hearing
regarding termination of her parental
rights, said hearing having been held on
September 27, 2013 and resulting in the
termination of her parental rights regarding
the minor child, [Mindy].
Although respondent-mother did not identify the order by entry
date or authoring judge, we believe her intent to appeal from
the 7 November 2013 termination order “can be fairly inferred
from the notice[.]” Chee v. Estes, 117 N.C. App. 450, 452, 451
S.E.2d 349, 351 (1994). Nor is there any indication that
Beaufort County Department of Social Services (“BCDSS”) or the
guardian ad litem (“GAL”) was “misled by [her] mistake.” Id.Moreover, the lack of proof of service of respondent-
mother’s notice of appeal does not deprive this Court of
jurisdiction, absent an objection by appellees. Blevins v. Town
of West Jefferson, 182 N.C. App. 675, 682-83, 643 S.E.2d 465,
469-70 (Geer, J., dissenting), adopted per curiam, 361 N.C. 578,
653 S.E.2d 392 (2007). Likewise, respondent-mother’s failure to
designate the court to which her appeal is taken does not
constitute a jurisdictional defect, as “this Court is the only
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court with jurisdiction to hear [her] appeal[.]” State v.
Ragland, __ N.C. App. __, __, 739 S.E.2d 616, 620, disc. review
denied, __ N.C. __, 747 S.E.2d 548 (2013). Therefore, we
dismiss the petition for writ of certiorari as moot.
II. Background
BCDSS obtained non-secure custody of three-week-old Mindy
on 9 December 2011, after filing a petition alleging that she
was a neglected juvenile. The petition reported, inter alia,
that respondent-mother lacked the ability to perform “routine
tasks of baby care, such as diapering, feeding, clothing,
bathing and consoling the child.” BCDSS further alleged that
respondent-father had a “long history” of assaulting family
members, including his romantic partners and their children, and
was subject to a domestic violence protective order (“DVPO”)
entered in April 2011 on behalf of his six-year-old son, for
bloodying the child’s nose after he choked on some liquid
medication. The record on appeal shows that in 2000,
respondent-father pled guilty to habitual misdemeanor assault
for beating his girlfriend’s seven-year-old son, J.H., and
consented to entry of an adjudication of neglect as to his five-
month-old daughter, R.S., based on his shaking of the child.
Respondent-father pled guilty to another charge of habitual
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misdemeanor assault in 2010 for assaulting respondent-mother.
The trial court adjudicated Mindy a neglected juvenile on
10 October 2012. The court ceased reunification efforts and
changed the child’s permanent plan to adoption on 16 September
2013, finding “that [respondent-]mother remains incapable of
making the changes required to remove the risk of harm to her
child in her home, and [respondent-]father remains unwilling to
do so.”
BCDSS filed a motion to terminate respondents’ parental
rights on 14 March 2013, alleging the following grounds for
termination as to both respondents: (1) neglect; (2) failure to
make reasonable progress to correct the conditions leading to
Mindy’s removal from their care; and (3) dependency. N.C. Gen.
Stat. § 7B-1111(a)(1), (2), (6). BCDSS alleged a fourth ground
for terminating respondent-mother’s parental rights under N.C.
Gen. Stat. § 7B-1111(a)(3) (2013). After hearing evidence on 27
September 2013, the trial court adjudicated the existence of
each of these grounds for termination and determined that
termination of respondents’ parental rights was in the best
interest of the minor child.
III. Standard of Review
Respondents challenge the trial court’s adjudication of
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grounds to terminate their parental rights under N.C. Gen. Stat.
§ 7B-1111(a). In reviewing an adjudication under N.C. Gen.
Stat. § 7B-1109(e) (2013), we must determine whether the
findings of fact in the termination order are supported by
clear, cogent and convincing evidence, and whether the findings
support the order’s conclusions of law. In re Gleisner, 141
N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000). “If there is
[such] evidence, the findings of the trial court are binding on
appeal.” In re McCabe, 157 N.C. App. 673, 679, 580 S.E.2d 69,
73 (2003). Moreover, any unchallenged findings are binding.
Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
We review the trial court’s conclusions of law de novo. In re
J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006).
IV. Sufficiency of Fact-Finding
Both respondent-mother and respondent-father argue that the
trial court failed to make necessary findings of fact in support
of its adjudication of grounds for termination under N.C. Gen.
Stat. § 7B-1111(a)(1), (2), and (6). We agree.
The trial court found the following facts by clear, cogent,
and convincing evidence:
4. . . . [Mindy] was born [i]n . . .
November, 2011 . . . . Her parents . . .
remain married at this time.
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5. [Mindy] is the second of three children
born to Mother and the fifth of six children
born to Father. None of the children are in
either parent’s physical or legal custody.
6. Father has significant anger issues and
history of assaulting domestic partners and
children left in his care. Father has been
convicted of assaulting Mother and Mother
has obtained two DVPO’s against Father and
then dismissed each case. Mother’s last
DVPO against Father was in July of 2013 when
mother was in the last trimester of
pregnancy.
7. Mother is mentally retarded and has a
full scale I.Q. of 63. Mother functions at
age equivalencies from 2 to 8 years old.
Her overall coping skills are equivalent to
that of a 3 1/2 year old child. Mother
lacks basic child care skills such as mixing
formula, properly holding an infant, and not
recognizing or responding to an infant[’]s
needs.
8. [Mindy] was adjudicated neglected,
following a hearing which ended on September
5, 2012. BCDSS and [the guardian ad litem]
expressed a willingness to allow the parents
an opportunity to intensify their
reunification efforts. The court ordered
Father to obtain a psychological evaluation
within the next 90 days . . . .
9. Mother has worked under a case plan
since January of 2012. Mother completed two
separate parenting courses but her AAPI[2]
showed no improvement in her parenting
skills. Mother attended some individual
2
The Adult Adolescent Parenting Inventory was prepared by
respondents’ parenting class facilitators at Cornerstone Church.
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therapy but still lives in the home with
Father and fails to appreciate the danger
that Father represents to her or any child
in her home. BCDSS has repeatedly offered
to take Mother to a domestic violence
shelter but Mother refuses this assistance.
10. Father has worked under a case plan
since January of 2012. Father was ordered
to obtain a psychological evaluation and has
failed to do so. Father completed two
separate parenting courses but his AAPI
showed no improvement in his parenting
skills. Father completed anger management
therapy but continues to excuse his violent
conduct and does not accept responsibility
for his actions. The most recent DVPO was
entered against Father in July of 2013 after
Father had completed Anger Management
Therapy.
11. On July 12, 2013, the court entered an
order for BCDSS to cease reunification
efforts and proceed to clear [Mindy] for
adoption . . . . No progress has been made
since that time.
12. [Mindy] has been in foster care since
she was three weeks old. Her foster parents
are the only parents she has ever known and
she is very bonded with them. . . .
Based on these findings, the count entered a single conclusion
of law: “Grounds exist to terminate the parental rights of the
Mother and Father under N.C.G.S. Sections 7B-1111(a)(1)[,](2)
and (6).”
A. Neglect under G.S. 7B-1111(a)(1)
Because Mindy had been placed outside the home since
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December 2011, an adjudication for neglect under N.C. Gen. Stat.
§ 7B-1111(a)(1) required findings of both a prior adjudication
of neglect and “a probability of repetition of neglect if the
juvenile were returned to her parents.” In re Reyes, 136 N.C.
App. 812, 814-15, 526 S.E.2d 499, 501 (2000). The trial court
made no findings regarding the probability of future neglect by
either respondent. Therefore, its findings were insufficient to
support its adjudication under N.C. Gen. Stat. § 7B-1111(a)(1).
B. Lack of Reasonable Progress under G.S. 7B-1111(a)(2)
Under N.C. Gen. Stat. § 7B-1111(a)(2), a parent’s rights
may be terminated if the district court determines that (1) the
minor child has been willfully left by the parent in foster care
for over 12 months and (2) as of the time of the hearing, the
parent has failed to make reasonable progress under the
circumstances to correct the conditions which led to the child’s
removal from the home. In re O.C. & O.B., 171 N.C. App. 457,
464-65, 615 S.E.2d 391, 396, disc. rev. denied, 360 N.C. 64, 623
S.E.2d 587 (2005). To justify termination of parental rights on
this ground, the trial court must find that the parent has acted
willfully. See In re T.M.H., 186 N.C. App. 451, 455, 652 S.E.2d
1, 3, cert. denied and disc. rev. denied, 362 N.C. 87, 657
S.E.2d 31 (2007). Here, “[t]he order before us contains no
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findings of willfulness. In the absence of a finding of
willfulness, the trial court’s order does not establish grounds
for termination” and must be reversed as to this ground. Id.C. Dependency under G.S. 7B-1111(a)(6)
The district court also entered an adjudication based on
dependency under G.S. 7B-1111(a)(6). As applied to respondents,
such an adjudication requires findings of fact that “address
both (1) the parent’s ability to provide care or supervision,
and (2) the availability to the parent of alternative child care
arrangements.” In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d
403, 406 (2005) (reversing adjudication where the “trial court
never addressed the second prong of the dependency definition”).
Although finding 7 alludes to respondent-mother’s lack of
child-rearing skills, the district court did not explicitly
assess either respondent’s ability to provide care or
supervision for Mindy and made “no finding that [either]
respondent lacked ‘an appropriate alternative child care
arrangement.’” Id. at 428, 610 S.E.2d at 407. Accordingly, “we
must reverse the lower court . . . and remand for entry of
findings as to the ability of the parent to provide care or
supervision and the availability of alternative child care
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arrangements.” In re B.M., 183 N.C. App. 84, 90, 643 S.E.2d
644, 648 (2007).
V. Conclusion
Although the evidence in the record is sufficient to
support adequate findings on any number of grounds, “[w]hen a
trial court is required to make findings of fact, it must find
the facts specially . . . [and] through processes of logical
reasoning from the evidentiary facts find the ultimate facts
essential to support the conclusions of law.” In re Harton, 156
N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003) (citations and
quotation marks omitted). Because the district court’s
termination order lacks the necessary findings, we must “vacate
the order and remand . . . with instructions to make appropriate
findings . . . and then, if appropriate, to articulate
conclusions of law that include the grounds under N.C. [Gen.
Stat.] § 7B-1111(a) which form the basis for termination.” In
re T.M.H., 186 N.C. App. at 456, 652 S.E.2d at 3. The trial
court may receive additional evidence on remand, within its
sound discretion. Id. In light of our holding, we decline to
address respondents’ remaining arguments on appeal. See id.; In
re B.M., 183 N.C. App. at 90, 643 S.E.2d at 648.
VACATED and REMANDED.
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Judges CALABRIA and DAVIS concur.
Report per Rule 30(e).