In re C.W.

• Decision Date: 20 March 2007
• Docket Number: No. COA06-742.,COA06-742.
• Citation: 641 S.E.2d 725
• Court: North Carolina Court of Appeals
• Parties: In the Matter of C.W. & J.W., Minor Children.

641 S.E.2d 725

In the Matter of C.W. & J.W., Minor Children.

No. COA06-742.

Court of Appeals of North Carolina.

March 20, 2007.

Appeal by respondent from order terminating parental rights entered 17 February 2006 by Judge Sandra Criner in District Court, Pender County. Heard in the Court of Appeals 24 January 2007.

Regina Floyd-Davis, Wilmington, for petitioner-appellee.

Sophie W. Hosford, Wilmington, for respondent-appellant.

STROUD, Judge.

Respondent Michael W. appeals the trial court order terminating his parental rights to two minor boys, C.W. and J.W. C.W. was born on 8 April 1995 and J.W. was born on 15 April 1998. Respondent is the biological father of both children.

I. Background

Between May 2001 and July 2003, respondent was on probation for a conviction of taking indecent liberties with a child. On 27 July 2003, respondent's probation was revoked and he was re-incarcerated. At that time, C.W. and J.W. lived at the Masonic Home for Children (Masonic Home) in Oxford, N.C. The children had been voluntarily placed in the Masonic Home by their mother, Kelly W., who was financially unable to provide food and housing for them.

In August 2003, the Masonic Home notified the Pender County Department of Social Services (DSS) that it had lost contact with the children's mother. On 15 September 2003, the children were placed in the nonsecure custody of DSS and DSS chose the Masonic Home as a foster placement for the children.

On 31 October 2003, an adjudication hearing was held in District Court, Pender County, at which the children's mother stipulated that C.W. and J.W. are dependent children within the meaning of N.C. Gen.Stat. § 7B-101(9). A dependent child is a child who is "in need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or whose parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement." N.C. Gen.Stat. § 7B-101(9) (2005). DSS recommended that the primary plan should be to reunify the children with their mother. On 30 January 2004, the trial court entered orders of adjudication in which the court found the same.

Although the children's mother entered into a case plan with DSS on 30 September 2003, she did not complete the plan, and on 23 July 2004 DSS requested that the trial court change the primary plan from reunification to adoption. Thereafter, the children's mother voluntarily relinquished her parental rights to both boys.

There is no evidence that DSS contacted respondent before seeking to cease reunification efforts with the children's mother and no evidence that DSS entered into a case plan with respondent. Respondent requested appointed counsel and also requested to be present at the subsequent permanency planning hearing, which was held on 31 March 2005. Following the hearing, the trial court ordered that the permanent plan for C.W. and J.W. would be adoption. In a later permanency planning report to the court dated 22 July 2005, DSS stated that respondent "has been very vocal about the agency intervention. He states [that] he should have rights to his children."

The history provided above is documented in previously filed DSS reports and court orders in this case. The trial court took judicial notice of these previously filed reports and orders in the order terminating respondent's parental rights.

II. Termination Hearing

On 28 July 2005, DSS filed a petition to terminate respondent's parental rights. Respondent did not answer the petition but did file a pro se motion to dismiss, which was subsequently denied. The trial court held a termination hearing on 16 December 2005, at which respondent was present and represented by counsel.

DSS presented evidence during the termination hearing to show that C.W. has been living at the Masonic Home since 2000 and that J.W. has been living there since 2001. When C.W. and J.W. were voluntarily placed in the Masonic Home, they were five years old and three years old respectively. Both children were placed in the Masonic Home by their mother without prior consultation with respondent, who learned of each child's placement after the fact.

In 1998, respondent served a seventy-five day sentence for DWI. During this time, both children were removed from their parents' home by DSS in response to a report that C.W. had a suspicious bruise. The children were returned to their parents' home by DSS two and one half months later. DSS did not present any evidence to show that the 1998 removal resulted in an adjudication of abuse, neglect, or dependency, and the record is silent on this point.

Respondent was also incarcerated from June 2000 to May 2001 following a conviction for taking indecent liberties with his niece, who was a minor. He was released on probation in May 2001.

Respondent testified during the termination hearing that the superior court order setting the terms of his probation prevented him from having contact with C.W. and J.W. until he completed a mental evaluation. There is some evidence from the children's mother, in the form of a notation on J.W.'s psychological evaluation, that respondent would have been permitted to visit the children with the supervision of his pastor. The record does not show whether respondent ever completed the necessary mental evaluation; however, respondent did not visit the children at the Masonic Home or make other housing arrangements for the children while free on probation. Although C.W. and J.W. lived at the Masonic Home during this time, their placement in the home was a voluntary decision made by their mother and DSS did not have legal or physical custody of the children.

Respondent's probation was revoked on 27 July 2003 and he was re-incarcerated. DSS was awarded nonsecure custody of C.W. and J.W. shortly thereafter. During his incarceration, respondent sent or arranged for the sending of birthday and Christmas cards to the children. Typically, each card contained $5.00. Respondent also requested that his parents, who live in Iowa, be considered as a relative placement for the children. After contacting respondent's parents, DSS concluded that they were not a suitable placement. Respondent testified at the termination hearing that his parents were financially unable to care for C.W. and J.W. At the time of the termination hearing, respondent's projected release date from prison was in May 2006.

Following the hearing, the trial court entered an order terminating respondent's parental rights. In its order, the trial court found three grounds for termination: (1) respondent neglected C.W. and J.W., (2) respondent willfully left C.W. and J.W. in foster care for more than twelve months without making reasonable progress under the circumstances toward correcting the conditions that led to their removal from the home, and (3) respondent willfully abandoned C.W. and J.W. These grounds are set forth by statute in N.C. Gen.Stat. § 7B-1111(a)(1), (2) and (7) (2005) respectively. In addition, the trial court concluded that termination of respondent's parental rights is in the children's best interests pursuant to N.C. Gen.Stat. § 7B-1110 (2005). The termination order was entered on 17 February 2006, sixty days after the termination hearing.

For the reasons stated below, we hold that DSS failed to present sufficient evidence of any statutory ground for termination alleged in its petition. Accordingly, we reverse the trial court order terminating respondent's parental rights.

III. Standard of Review

N.C. Gen.Stat. § 7B-1111 lists nine grounds for which a trial court may terminate a party's parental rights. N.C. Gen. Stat. § 7B-1111. DSS, or any other party identified in N.C. Gen.Stat. § 7B-1103 (2005), may initiate a proceeding to terminate parental rights by filing a petition in district court. N.C. Gen.Stat. § 7B-1103. The petition must allege "[f]acts that are sufficient to warrant a determination that one or more of the grounds for terminating parental rights [listed in N.C. Gen.Stat. § 7B-1111] exist." N.C. Gen.Stat. § 7B-1104(6) (2005). A termination proceeding is conducted in two stages: adjudication and disposition. N.C. Gen.Stat. §§ 7B-1109, 1110 (2005). The petitioner carries the burden of proof during adjudication, In re Mitchell, 148 N.C.App. 483, 488, 559 S.E.2d 237, 241 (2002), but there is no burden of proof on either party during disposition, In re Dexter, 147 N.C.App. 110, 114, 553 S.E.2d 922, 924 (2001).

During adjudication, the trial court must determine whether the petitioner has presented clear, cogent, and convincing evidence of the existence of one or more of the grounds for termination set forth in N.C. Gen.Stat. § 7B-1111. If the court finds at least one ground to exist, then the proceeding continues to disposition phase. See In re Carr, 116 N.C.App. 403, 407, 448 S.E.2d 299, 302 (1994) (holding that "the court exercises its discretion in the dispositional stage only after the court has found that there is clear and convincing evidence of one of the statutory grounds for terminating parental rights during the adjudicatory stage"). During disposition, the trial court must determine whether terminating the respondent's parental rights is in the child's best interests. N.C. Gen.Stat. § 7B-1110. The court's decision regarding the best interests of the child represents an exercise of the court's discretion. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

On appeal, this Court considers whether the trial court's findings of fact are based on clear, cogent, and convincing evidence and whether those findings support the trial court's conclusion that grounds for termination exist pursuant to N.C. Gen.Stat. § 7B-1111. In re Oghenekevebe, 123 N.C.App. 434, 436, 473 S.E.2d 393, 395 (1996). This standard of review directly corresponds to the adjudication phase of the termination proceeding. This Court also...