In re C.L.H.
| Court | United States State Supreme Court of North Carolina |
| Citation | 853 S.E.2d 434,376 N.C. 614 |
| Decision Date | 05 February 2021 |
| Docket Number | No. 213A20,213A20 |
| Parties | In the MATTER OF: C.L.H. |
376 N.C. 614
853 S.E.2d 434
In the MATTER OF: C.L.H.
No. 213A20
Supreme Court of North Carolina.
Filed February 5, 2021
No brief for petitioner-appellee mother.
No brief for appellee Guardian ad Litem.
Anné C. Wright, Boone, for respondent-appellant father.
EARLS, Justice.
¶ 1 Respondent appeals from the trial court's order terminating his parental rights to C.L.H. (Cash).1 After careful review, we conclude that this case is in large part controlled by In re K.N. , 373 N.C. 274, 837 S.E.2d 861 (2020), necessitating that we reverse in part and vacate and remand in part.
¶ 2 Respondent is the biological father of Cash, and petitioner is Cash's biological mother. Cash was born in 2009 following a brief relationship between respondent and petitioner. Respondent and petitioner never married. On 19 August 2011, respondent and petitioner entered into a parenting agreement by which petitioner was granted primary custody of Cash, and respondent was granted visitation. Respondent and petitioner also entered into a child support consent order by which respondent agreed to pay petitioner $433 per month and fifty percent of any uninsured medical bills after the first $250 was paid by petitioner. However, neither the facts alleged in the termination petition and admitted
in the answer nor the trial court's factual findings indicate whether the child support consent order was in effect during the year preceding the filing of the termination petition. The last known contact between respondent and Cash was in April 2018.
¶ 3 On 1 May 2018, the trial court held a hearing after petitioner filed a motion in the cause for modification of custody and to hold respondent in contempt. Petitioner stated that she filed the motion because of concerns she had regarding events that occurred during Cash's visitation with respondent. Specifically, petitioner testified that Cash was visiting respondent on 25 February 2018 when she received a phone call claiming that she needed to pick up Cash because respondent had a medical issue. At the time, respondent was living in a camper behind his parents’ home, and Cash would stay in the grandparents’ home while visiting with respondent. When petitioner arrived at the grandparents’ home, she found that respondent had been taken to the hospital. Petitioner testified that
she went into respondent's camper to retrieve Cash's belongings and that it was "smoky" and smelled "chemically." On 13 June 2018, the trial court entered an order in which it found as fact that Cash found respondent unresponsive and sought help because respondent was "overdosing on heroin." The trial court found respondent to be unfit to provide for Cash's physical, emotional, and financial well-being and granted petitioner sole physical and legal custody of Cash. The trial court also terminated respondent's visitation with Cash.
¶ 4 On 30 January 2019, petitioner filed a petition to terminate respondent's parental rights to Cash. Petitioner alleged that grounds existed to terminate respondent's parental rights for neglect, willful failure to pay child support, dependency, and willful abandonment. N.C.G.S. § 7B-1111(a)(1), (4), (6)–(7) (2019). On 10 April 2019, respondent filed an answer in which he opposed the termination of his parental rights. On 22 January 2020, the trial court entered an order in which it determined grounds existed to terminate respondent's parental rights pursuant to N.C.G.S. § 7B-1111(a)(1), (4), and (6). The trial court further determined that it was in Cash's best interests that respondent's parental rights be terminated. Respondent appeals.
¶ 5 Respondent argues that the trial court erred by concluding that grounds existed to terminate his parental rights. "Our Juvenile Code provides for a two-step process for termination of parental rights proceedings consisting of an adjudicatory stage and a dispositional stage." In re Z.A.M. , 374 N.C. 88, 94, 839 S.E.2d 792, 796–97 (2020) (citing N.C.G.S. §§ 7B-1109, -1110 (2019)). "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." In re A.U.D. , 373 N.C. 3, 5–6, 832 S.E.2d 698, 700 (2019) (quoting N.C.G.S. § 7B-1109(f) (2019) ). We review a trial court's adjudication of grounds to terminate parental rights "to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law." In re E.H.P. , 372 N.C. 388, 392, 831 S.E.2d 49, 52 (2019) (quoting In re Montgomery , 311 N.C. 101, 111, 316 S.E.2d 246, 253 (1984) ). "The trial court's conclusions of law are reviewable de novo on appeal." In re C.B.C. , 373 N.C. 16, 19, 832 S.E.2d 692, 695 (2019).
¶ 6 In this case, the trial court determined that grounds existed to terminate respondent's parental rights based on neglect, willful failure to pay child support, and dependency. N.C.G.S. § 7B-1111(a)(1), (4), and (6). We begin our analysis with consideration of whether grounds existed to terminate respondent's parental rights for neglect, pursuant to N.C.G.S. § 7B-1111(a)(1).
¶ 7 A trial court may terminate parental rights where it concludes the parent has neglected the juvenile within the meaning of N.C.G.S. § 7B-101. N.C.G.S. § 7B-1111(a)(1). A neglected juvenile is defined, in pertinent part, as a juvenile "whose parent, guardian, custodian, or caretaker does not provide proper care, supervision, or discipline; ... or who lives in an environment injurious to the juvenile's welfare." N.C.G.S. § 7B-101(15) (2019).
Termination of parental rights based upon this statutory ground requires a showing of neglect at the time of the termination hearing or, if the child has been separated from the parent for a long period of time, there must be a showing of past neglect and a likelihood of future neglect by the parent.
In re D.L.W. , 368 N.C. 835, 843, 788 S.E.2d 162, 167 (2016) (citing In re Ballard , 311 N.C. 708, 713–15, 319 S.E.2d 227, 231–32 (1984) ). "When determining whether such future neglect is likely, the district court must consider evidence of changed circumstances occurring between the period of past neglect and the time of the termination hearing." In re Z.V.A. , 373 N.C. 207, 212, 835 S.E.2d 425, 430 (2019) (citing In re Ballard , 311 N.C. at 715, 319 S.E.2d at 232 ).2
¶ 8 Here, Cash was not in respondent's custody at the time of the termination hearing and had not been since at least 13 June 2018, when the trial court awarded petitioner sole physical and legal custody of Cash. The last known contact between respondent and Cash was in April 2018, approximately 18 months before the termination hearing. Additionally, because this case does not arise from involvement by the Department of Social Services, no petition alleging neglect was ever filed, and Cash was never adjudicated to be a neglected juvenile.
¶ 9 The sole finding of fact potentially supporting a conclusion that respondent had previously neglected Cash was finding of fact 17(a). In finding of fact 17(a), the trial court found that
[r]espondent was unable to care for [Cash] during the February 2018 incident, whether it was due to a drug overdose or some other medical condition, for some period of time the child was not cared for and there does not appear that there was a proper plan in place for alternative care.
Respondent argues that the portion of finding of fact 17(a) which states that Cash was not cared for during the February 2018 incident is not supported by clear, cogent, and convincing evidence. We agree. The only evidence in the record concerning Cash's care during this incident was that he stayed in his grandparents’ home when visiting with respondent, that his paternal grandfather was the person who called for help with respondent's medical issue, and that petitioner was called to pick up Cash from the grandparents’ home. There was no evidence presented that Cash was not cared for during this incident. Accordingly, we disregard this portion of finding of fact 17(a). See In re J.M.J.-J. , 374 N.C. 553, 559, 843 S.E.2d 94, 101 (2020) (disregarding adjudicatory findings of fact not supported by clear, cogent, and convincing evidence).
¶ 10 We further note that the trial court's findings of fact, even if supported, shed little light on how this incident, and the alleged absence of care, impacted Cash. See In re K.L.T. , 374 N.C. 826, 831, 845 S.E.2d 28, 34 (2020) ("In order to constitute actionable neglect, the conditions at issue must result in ‘some physical, mental, or emotional impairment of the juvenile or a substantial risk of such impairment.’ " (citation omitted)). Further, assuming arguendo that the incident and alleged lack
of care constituted prior neglect, the trial court did not find that there would be a likelihood of future neglect should Cash...
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