In re E.B.

• Citation: 847 S.E.2d 666,375 N.C. 310
• Decision Date: 25 September 2020
• Docket Number: No. 429A19,429A19
• Parties: In the MATTER OF: E.B.
• Court: United States State Supreme Court of North Carolina

375 N.C. 310

847 S.E.2d 666

In the MATTER OF: E.B.

No. 429A19

Supreme Court of North Carolina.

Filed September 25, 2020

Jane R. Thompson, for petitioner-appellee Rowan County Department of Social Services.

Jeffrey L. Miller, Greenville, for respondent-appellant father.

EARLS, Justice.

Respondent-father appeals from the Court of Appeals’ affirmance of the trial court's order terminating parental rights to his minor child, E.B. (Ella).¹ Between 12 May 2016 and 25 January 2018, the trial court conducted six permanency planning and review hearings and entered six orders imposing numerous conditions that respondent was required to satisfy prior to obtaining custody of Ella. However, as petitioners conceded before the Court of Appeals, the trial court lacked jurisdiction to conduct the permanency planning and review hearings under N.C.G.S. § 7B-200 because the Rowan County Department of Social Services (DSS) "failed to file a proper juvenile petition consistent with the requirements of N.C.[G.S.] §§ 7B-402(a) and 403(a), and thus no juvenile abuse, neglect, or dependency action was ever commenced." In re E.B. , 834 S.E.2d 169, 172 (N.C. Ct. App. 2019). Indeed, Ella was never adjudicated to be an abused, neglected or dependent child. Her father indicated his desire to have custody of her and to care for her from the day he learned of her birth.

On 30 November 2018, the trial court entered an order terminating respondent's parental rights on the grounds of neglect, failure to make reasonable progress, and willful abandonment. The Court of Appeals affirmed the trial court's termination order on the willful abandonment ground. Id. at 175. Judge Hampson dissented. Judge Hampson would have held that because the facts supporting the grounds for termination as adjudicated by the trial court were "inextricably intertwined" with the concededly invalid permanency planning and review hearings, the trial court failed to prove grounds for termination by "clear, cogent, and convincing evidence." Id. (Hampson, J., dissenting).

We substantially agree with Judge Hampson and hold today that petitioners have failed to prove by clear, cogent, and convincing evidence that respondent willfully abandoned his child. We also hold that petitioners have failed to prove that any other ground existed to terminate respondent's parental rights. Accordingly, we reverse.

Standard of Review

"A trial court is authorized to order the termination of parental rights based on an adjudication of one or more statutory grounds." In re J.A.E.W. , 846 S.E.2d 268, 271 (N.C. 2020). "At the adjudicatory stage, the petitioner bears the burden of proving by ‘clear, cogent, and convincing evidence’ the existence of one or more grounds for termination under section 7B-1111(a) of the General Statutes. N.C.G.S. § 7B-1109(e), (f) (2019)." Id.

The trial court found three separate grounds for terminating respondent's parental rights: (1) neglect, pursuant to N.C.G.S. § 7B-1111(a)(1) ; (2) failure to make reasonable progress, pursuant to N.C.G.S. § 7B-1111(a)(2) ; and (3) willful abandonment, pursuant to N.C.G.S. § 7B-1111(a)(7). We review a trial court's adjudication under N.C.G.S. § 7B-1109 "to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusion of law." In re Montgomery , 311 N.C. 101, 111, 316 S.E.2d 246, 253 (1984). We review the trial court's conclusions of law de novo. In re C.B.C. , 373 N.C. 16, 19, 832 S.E.2d 692, 695 (2019).

Background

Ella was born on 18 February 2016. The next day, Ella's mother relinquished her parental rights, placing Ella in nonsecure custody with DSS. By relinquishing her parental rights, Ella's mother agreed to the "transfer of legal and physical custody of the minor to the agency for the purposes of adoption." N.C.G.S. § 48-3-703(a)(5) (2019). As an exercise of that custodial authority, DSS placed Ella in foster care.

Ella's mother informed DSS that she believed respondent was Ella's biological father. Sometime thereafter, DSS informed respondent that he had been named by Ella's mother as the putative biological father of a newborn. When DSS contacted respondent, he reported that he was "excited" to be Ella's father. He agreed to submit to a paternity test. Even before paternity was confirmed, respondent expressed his desire to be a parent to Ella. However, until respondent was confirmed as Ella's biological parent, DSS possessed sole legal custody of Ella. See N.C.G.S. § 48-3-601, -705.

On 23 March 2016, before the results of the paternity tests were known, respondent voluntarily entered into an out-of-home family services agreement with DSS. Respondent stated that he wanted to do "whatever [DSS said] was necessary." Because he was working and had his own home, he believed the reunification process "would just go over smoothly and my daughter would be released." On 19 April 2016, a paternity test confirmed that respondent was Ella's biological father.

Between 12 May 2016 and 25 January 2018, the trial court conducted six permanency planning and review hearings. After each hearing, the court entered an order imposing numerous requirements on respondent before he could be reunified with Ella. These requirements incorporated the recommendations DSS made in the out-of-home family services agreement. After the first five hearings, the trial court concluded that Ella's "primary permanent plan shall be reunification with [respondent], with a secondary plan of guardianship to a relative or a court approved caretaker." After the final hearing, the trial court changed the primary plan to "adoption, with a secondary plan of reunification."

DSS never filed a petition seeking to have the trial court adjudicate Ella an abused, neglected, or dependent juvenile pursuant to N.C.G.S. §§ 7B-402(a) and - 403(a). Thus, the trial court lacked subject-matter jurisdiction to conduct permanency planning and review hearings, and its orders lacked the force of law. See In re T.R.P. , 360 N.C. 588, 593, 636 S.E.2d 787, 792 (2006) ("A trial court's subject matter jurisdiction over all stages of a juvenile case is established when the action is initiated with the filing of a properly verified petition.").

When Ella was born, respondent was helping to raise three of his own juvenile children. Within months, respondent became his children's sole caregiver. Still, as soon as he learned about Ella, respondent expressed his desire to eventually take Ella into his custody and care. Respondent immediately began visitation with Ella. He brought her age-appropriate snacks, cleaned her, and bonded healthily with his daughter. After DSS raised concerns about his living situation, respondent relocated to a new apartment. He submitted to three drug screens, two of which were negative and one inconclusive. He completed parenting classes to improve his ability to care for an infant.

Respondent also named his sister, who lived in California, as a potential relative placement option, although he was initially reluctant to request that DSS place Ella with her because she lived so far away. In April 2016, respondent asked DSS to initiate an Interstate Compact on the Placement of Children (ICPC) review process, and respondent's sister agreed to serve as Ella's guardian. After the North Carolina ICPC office misplaced the initial request, causing a months-long delay, respondent's sister called DSS to request an expedited home study to facilitate quicker ICPC approval. She visited with Ella on three occasions during her trips to North Carolina. Anticipating that she would promptly begin caring for Ella, respondent's sister purchased a crib; when the ICPC process was delayed, respondent's sister removed the crib and replaced it with a "princess bed." Ultimately, respondent's sister became a licensed foster parent and was assessed and approved to assume custody of Ella through the ICPC review process. In order to meet the ICPC's requirements, respondent's sister completed parenting courses, became CPR certified, and moved her entire family out of their home into one that would be safer for Ella because it did not have a pool. The ICPC report noted that respondent's sister possessed "considerable insight into the effects that separation and loss can have on children from her own experiences" in the foster care system.

Although respondent never disclaimed his intent to eventually assume custody of Ella, he also struggled to fully address the issues that he and DSS had identified in the voluntary out-of-home family services agreement. Respondent did not complete the recommended domestic violence or substance abuse counseling. Respondent refused to consent to ongoing drug screens, and his social media history suggested that he may have been continuing to use marijuana. He was assaulted by three men who broke into his home while his children were present, causing him to be hospitalized for a dislocated jaw

and stab wounds. He was evicted and lost his job. DSS reported that his home was cluttered and dirty. He had extended periods of inconsistent visitation with Ella, which respondent attributed to his lack of a driver's license, his injuries, and a death in the family. Eventually, respondent informed DSS that he was not interested in continuing to engage in parenting services and that he only wanted to maintain visitation with Ella. It is undisputed that respondent did not fully comply with all of the terms of the trial court's orders.

Respondent's final in-person visit with Ella occurred on 5 September 2017. On 22 January 2018, respondent moved to California. Respondent did not inform DSS of his impending move and did not immediately provide them with an address where he could be reached. On 10 April 2018, DSS filed a petition to terminate respondent's parental rights, alleging grounds of neglect, failure to make reasonable progress, willful abandonment, and failure to pay child support. Respondent did not communicate with Ella...