In re A.C.F.

• Decision Date: 07 March 2006
• Docket Number: No. COA05-764.,COA05-764.
• Parties: In re A.C.F., Minor Child.
• Court: North Carolina Court of Appeals

626 S.E.2d 729

In re A.C.F., Minor Child.

No. COA05-764.

Court of Appeals of North Carolina.

March 7, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal by respondent-mother from orders entered 8 March 2005 by Judge Burford A. Cherry in Catawba County District Court. Heard in the Court of Appeals 11 January 2006.

J. David Abernethy, Newton, for Catawba County Department of Social Services, petitioner-appellee.

Mercedes O. Chut, Greensboro, for respondent-mother.

Mary McKay, Morganton, Guardian ad Litem.

LEVINSON, Judge.

Respondent-mother (respondent) appeals from the orders of adjudication and disposition terminating her parental rights in A.C.F. The trial court erred in its conclusion that grounds existed under N.C. Gen.Stat. § 7B-1111(a)(2) (failure to make reasonable progress) to terminate respondent's parental rights.

The evidence presented at the termination hearing may be summarized as follows: A.C.F. was born 15 March 2000 and resided with respondent until February 2002, when law enforcement officers searched respondent's residence and discovered she was in possession of various controlled substances. Following the search of respondent's home, respondent voluntarily agreed to have A.C.F. reside in the care of a third party pursuant to a voluntary placement agreement.

On 26 November 2002 Catawba County Department of Social Services (DSS) obtained custody of A.C.F. pursuant to a non-secure custody order. On 4 March 2003 A.C.F. was adjudicated neglected, and his custody remained with DSS. On 11 September 2003 DSS filed a motion to terminate respondent's parental rights, alleging (1) neglect pursuant to N.C. Gen.Stat. § 7B-1111(a)(1), and (2) willfully leaving A.C.F. in foster care or placement outside the home for more than twelve months and failing to make reasonable progress in correcting the conditions which led to the child's removal pursuant to N.C. Gen.Stat. § 7B-1111(a)(2). Following a hearing 17 November 2004 and 12 January 2005, the trial court concluded the evidence only supported termination of respondent's parental rights pursuant to G.S. § 7B-1111(a)(2) (failure to make reasonable progress), and entered orders of adjudication and disposition terminating respondent's rights 8 March 2005. Respondent appeals.

Respondent contends the trial court erred by concluding as a matter of law that grounds exist to terminate her parental rights pursuant to G.S. § 7B-1111(a)(2). Respondent contends that A.C.F. had not been "removed" from respondent's home for the requisite period of time before DSS filed the motion to terminate parental rights. We agree.

A termination of parental rights proceeding is conducted in two stages. Under N.C. Gen.Stat. § 7B-1109(e) (2005), the trial court "shall take evidence, find the facts, and shall adjudicate the existence or nonexistence of any of the circumstances set forth in G.S. § 7B-1111 which authorize the termination of parental rights of the respondent." At the disposition stage under N.C. Gen.Stat. § 7B-1110 (2003), "[s]hould the court determine that any one or more of the conditions authorizing a termination of the parental rights of a parent exist, the court shall issue an order terminating the parental rights of such parent... unless the court shall further determine that the best interests of the juvenile require that the parental rights not be terminated."

This Court reviews a termination of parental rights to determine "whether the court's findings of fact are based upon clear, cogent and convincing evidence and whether the findings support the conclusions of law." In re Pope, 144 N.C.App. 32, 40, 547 S.E.2d 153, 158 (2001) (internal quotation marks and citation omitted).

G.S. § 7B-1111(a)(2) (2005) provides that one's parental rights may be terminated where:

The parent has 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....

Respondent's argument presents two questions regarding G.S. § 7B-1111(a)(2): (1) the meaning of "left ... in foster care or placement outside the home" and "removal of the juvenile"; and (2) how to measure the time frame, "for more than 12 months". Our research reveals these questions have not been specifically addressed by our appellate courts.

"Questions of statutory interpretation are questions of law, which are reviewed de novo by an appellate court." In re Proposed Assessments v. Jefferson-Pilot Life Ins. Co., 161 N.C.App. 558, 559, 589 S.E.2d 179, 180 (2003).

The intent of the legislature controls the interpretation of a statute.... When the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must give the statute its plain and definite meaning, and are without power to interpolate, or superimpose, provisions and limitations not contained therein. But when a statute is ambiguous or unclear in its meaning, resort must be had to judicial construction to ascertain the legislative will and the courts will interpret the language to give effect to the legislative intent.... [T]he legislative intent "... is to be ascertained by appropriate means and indicia, such as the purposes appearing from the statute taken as a whole, the phraseology, the words ordinary or technical, the law as it prevailed before the statute, the mischief to be remedied, the remedy, the end to be accomplished, statutes in pari materia, the preamble, the title, and other like means...." Other indicia considered by this Court in determining legislative intent are ... previous interpretations of the same or similar statutes.

Finally, it is a well settled rule of statutory construction that, where a literal interpretation of the language of a statute would contravene the manifest purpose of the statute, the reason and purpose of the law will be given effect and the strict letter thereof disregarded.

In re Banks, 295 N.C. 236, 239-40, 244 S.E.2d 386, 388-89 (1978) (citations omitted).

As used in G.S. § 7B-1111(a)(2), the word "left" in "left the juvenile in foster care or placement outside the home" could implicate a broad range of meanings. A parent might have "left" his child in foster care or placement where the same was required by a juvenile court order. A parent might have "left" his child in another adult's home even though the same was neither required by a juvenile court order nor urged by a social services entity. Or a parent might have "left" his child in another's home not because the same was required by a juvenile court order, but because he voluntarily agrees (consistent with a family services plan crafted by a social services entity) that the child should be "left" in someone else's care.

The term "removal" in "removal of the juvenile" in G.S. § 7B-1111(a)(2) could likewise implicate a variety of different meanings. Interpreted narrowly, "removed" from one's home might occur only where the juvenile court has entered an order requiring the same. Interpreted broadly, a parent might "remove" a child from his home anytime he places the child in another's care even though the same was neither required by a juvenile court order nor urged by a social services entity. A third interpretation of "removal" might include circumstances where a parent agrees, in the absence of a court order, that a child should be placed in another's care as a part of a family services plan crafted by a social services entity.

In determining the meaning of "left in foster care or placement" and "removal" in G.S. § 7B-1111(a)(2), we first consider our Supreme Court's decision in In re Pierce, 356 N.C. 68, 565 S.E.2d 81 (2002). In Pierce, a significant issue was the application of the "within twelve months" time frame for examining parental progress under former N.C. Gen.Stat. § 7A-289.32(3) (1998):

The parent has willfully left the child 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 within 12 months in correcting those conditions which led to the removal of the child.

In Pierce, the child was initially sent to live with her paternal grandmother in June 1997 pursuant to a "protection plan" constructed by the New Hanover County Department of Social Services. In re Pierce, 146 N.C.App. 641, 654, 554 S.E.2d 25, 33 (2001), aff'd, 356 N.C. 68, 565 S.E.2d 81 (2002). Less than one month later, the child returned to live with her parents. Pierce, 356 N.C. at 69, 565 S.E.2d at 82. In August 1997, DSS petitioned the court for custody and the child was placed in foster care. Id. In December 1998, the child was placed in the care of her father's first cousin and her husband. Id. Under these facts, our Supreme Court determined that, for purposes of N.C. Gen.Stat. § 7A-289.32(3) (now substantially codified in G.S. § 7B-1111(a)(2)), the child "was placed outside the home in late July or early August of 1997[,]" Pierce, 356 N.C. at 73, 565 S.E.2d at 85, and determined that "[o]ther evidence regarding [the mother's] progress dated back as far as the time the child was removed from the home, in August of 1997." Pierce, 356 N.C. at 74, 565 S.E.2d at 85. Therefore, our Supreme Court observed that the child had not been "placed" or "removed" for purposes of the applicable termination statute until the child had become the subject of a custody order. This was so notwithstanding the fact the child had been separated from her parents pursuant to a DSS protection plan as early as June 1997. Our Supreme Court's analysis of when the child was "placed" outside the home, according to G.S. § 7A-289.32(3), is strong authority that a child is "left in foster care or placement" or "removed" from the parent's care under G.S. § 7B-1111(a)(2) only when the same occurs by virtue of a court orde...