In re Anderson

• Decision Date: 18 June 2002
• Docket Number: No. COA01-885.,COA01-885.
• Citation: 151 NC App. 94,564 S.E.2d 599
• Court: North Carolina Court of Appeals
• Parties: In re Mercedes Laurnetta ANDERSON and Crystal Shanelle Cleo Anderson, Minors.

564 S.E.2d 599

151 NC App. 94

In re Mercedes Laurnetta ANDERSON and Crystal Shanelle Cleo Anderson, Minors.

No. COA01-885.

Court of Appeals of North Carolina.

June 18, 2002.

Stanley G. Abrams, Wilson, for respondent-appellant.

Beaman and King, P.A., by Charlene B. King, Wilson, for petitioner-appellee.

THOMAS, Judge.

This is an appeal by Cleveland Anderson, respondent, from orders terminating his parental rights to Mercedes Laurnetta Anderson and Crystal Shanelle Cleo Anderson.

By three assignments of error, Anderson contends the trial court erred: (1) in requiring him to put on additional evidence to change a prior order of termination that had been set aside; (2) in concluding that grounds exist to terminate his parental rights; and (3) in determining that termination of his parental rights is in the children's best interest. For the reasons herein, we reverse the orders of the trial court and remand for further proceedings consistent with this opinion.

In August of 1998, the Wilson County Department of Social Services (DSS) filed petitions alleging that Mercedes and Crystal were neglected and dependent. At the time, the juveniles resided with their biological mother, Joann Grant. Anderson was not living with them.

The trial court found that Grant stipulated and agreed to an adjudication of neglect and dependency based on the allegations in the petition that the juveniles did not receive proper care, supervision, or discipline from their parents; were not provided necessary medical care; and lived in an environment injurious to their welfare. It further found that Anderson "had recently expressed a desire to take his children into his home [but] has stated he is not able to provide proper care, at this time." Thereafter, DSS obtained custody of Mercedes, then two years old, and Crystal, then six months old.

Shortly after that hearing, social workers met with both parents to develop a plan for reunification and to establish a visitation schedule. Anderson told them he was not interested in obtaining custody and was not capable of meeting the children's needs or caring for them by himself. Consequently, the reunification part of the service plan only involved Grant with Anderson included in the visitation schedule. He did attend some of the visitations but usually stayed for less than the allotted time. Although notified, he did not attend a later meeting on 1 September 1999 to discuss the reunification plan with DSS.

Anderson was employed on a part-time basis while the children were in the custody of DSS. He sporadically paid child support and was $2,627.70 in arrears by the time of the termination hearing.

In September of 1999, the service plan for the children was changed from reunification to adoption. DSS filed petitions in October alleging that grounds exist to terminate parental rights under N.C. Gen.Stat. § 7B-1111(2) and 7B-1111(3) and, by order entered 31 July 2000, Anderson's and Grant's parental rights were terminated.

The parties, however, agreed by consent order filed 13 September 2000 that the earlier order of disposition should be set aside with a further dispositional hearing scheduled. The trial court held the additional hearing in October and concluded in its order filed 27 December 2000 that it was in the best interests of the children that the parental rights be terminated. Anderson appeals.

By his first assignment of error, Anderson contends the trial court required him to present additional evidence to change the first order of disposition terminating his parental rights. This occurred, he argues, even though that disposition had been set aside by consent order and a new dispositional hearing ordered. We disagree.

The consent order provides:

2. The parties agree that the Order on Disposition should be set aside and that a further hearing on disposition should be set before The Honorable John L. Whitley to allow the parties to present additional evidence on disposition.

Since the consent order states that the reason for setting aside the prior disposition was to allow the parties to present "additional evidence on disposition," the second dispositional hearing was, in effect, a continuation hearing rather than a hearing de novo. Therefore, it was not error for the trial court to decide that, because no new evidence was presented, the prior ruling should be left unchanged. There is no burden of proof on the parties at disposition. None was placed on Anderson here. The trial court correctly interpreted the consent order and we thus reject Anderson's first assignment of error.

By his second assignment of error, Anderson contends the trial court erred in concluding that statutory grounds exist to terminate his parental rights. We agree. The trial court's findings of fact, in large part, amount to mere recitations of allegations and provide little support for the conclusions of law.

In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.

N.C. Gen.Stat. § 1A-1, Rule 52(a)(1) (2001). Rule 52(a) requires three separate and distinct acts by the trial court: (1) find the facts specially; (2) state separately the conclusions of law resulting from the facts so found; and (3) direct the entry of the appropriate judgment. Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982). Thus, the trial court's factual findings must be more than a recitation of allegations. They must be the "specific ultimate facts ... sufficient for the appellate court to determine that the judgment is adequately supported by competent evidence." Montgomery v. Montgomery, 32 N.C.App. 154, 156-57, 231 S.E.2d 26, 28 (1977). "Ultimate facts are the final resulting effect reached by processes of logical reasoning from the evidentiary facts." Appalachian Poster Advertising Co. v. Harrington, 89 N.C.App. 476, 479, 366 S.E.2d 705, 707 (1988).

In summary, while Rule 52(a) does not require a recitation of the evidentiary and subsidiary facts required to prove the ultimate facts, it does require specific findings of the ultimate facts established by the evidence, admissions and stipulations which are determinative of the questions involved in the action and essential to support the conclusions of law reached.

Quick, 305 N.C. at 452, 290 S.E.2d at 658.

Here, the order of adjudication, filed 31 July 2000, contains only three findings of fact. Two merely recite that DSS filed a petition and that service was proper on Anderson and Grant. The third factual finding reads:

(3) The grounds alleged for terminating the parental rights are as follows:

[The order then lists in subsections a combination of grounds and case history.]

(Emphasis added). As indicated by the word "alleged," the findings are not the "ultimate facts" required by Rule 52(a) to support the trial court's conclusions of law, but rather are mere recitations of allegations. As a result, we are unable to conduct a proper review of the findings.

Even if the factual findings here did not merely recite allegations, they remain insufficient to support the conclusions of law that grounds exist for termination. A termination of parental rights proceeding consists of two phases. In re Blackburn, 142 N.C.App. 607, 610, 543 S.E.2d 906, 908 (2001). In the adjudicatory stage, the petitioner has the burden of establishing by clear and convincing evidence that at least one of the statutory grounds listed in N.C. Gen. Stat. § 7B-1111 exists. Id. We review whether the trial court's findings of fact are supported by clear and convincing evidence and whether the findings of fact support the conclusions of law. In re Huff, 140 N.C.App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001).

If the trial court determines that...