In re D.R.J.

• Decision Date: 17 June 2022
• Docket Number: 147A21
• Citation: 381 N.C. 381,873 S.E.2d 281
• Parties: In the MATTER OF: D.R.J.
• Court: North Carolina Supreme Court

381 N.C. 381

873 S.E.2d 281

In the MATTER OF: D.R.J.

No. 147A21

Supreme Court of North Carolina.

Filed June 17, 2022

Stephen M. Schoeberle, for petitioner-appellee Avery County Department of Social Services.

Matthew D. Wunsche, Durham, for appellee Guardian ad Litem.

Parent Defender Wendy C. Sotolongo, by Assistant Parent Defender Jacky Brammer, for respondent-appellant father.

MORGAN, Justice.

¶ 1 Respondent-father appeals the trial court order terminating his parental rights to "Dana," a minor female child born in May 2010.¹ The order also terminated the parental rights of Dana's mother, but the mother is not a party to this appeal. We reverse the trial court's order which terminates respondent-father's parental rights.

I. Factual and Procedural Background

¶ 2 After receiving reports in June 2018 and August 2018 concerning the mother's drug use and the commission of violence in the presence of the juvenile Dana, the Avery County Department of Social Services (DSS) filed a juvenile petition on 27 August 2018 alleging that Dana was a neglected juvenile. On 4 October 2018, the trial court entered an order adjudicating Dana to be a neglected juvenile based on stipulations by the parents to the following facts as alleged in the juvenile petition:

[DSS] became involved with this child on June 28, 2018 with a report of drug use by [the mother]. [The mother] agreed to complete a drug screen for the social worker on or about August 3, 2018, which came back positive for methamphetamine, amphetamine, Benzodiazepam and Lorazapam [sic ]. On August 13, 2018, DSS received another report that [the mother] and her boyfriend (not the Respondent father herein) had gotten into an argument over drugs in the presence of the child. Due to ongoing concerns with these reports as well as drug use by the Respondent father, DSS and the parents agreed the child should reside with the maternal grandmother[.]

As an interim disposition, the trial court ordered that Dana remain in the care of her maternal grandmother.

¶ 3 On 20 October 2018, prior to the disposition hearing on 25 October 2018, DSS received a report that Dana had been sexually abused by the maternal step-grandfather. On the date of the disposition hearing, DSS obtained nonsecure custody of Dana and placed her in a licensed foster home. In the dispositional order entered on 28 November 2018, the trial court found that respondent-father was ordered previously to sign and complete a case plan, but that he had not done so. The trial court directed that Dana remain in DSS custody. In the subsequent 25 January 2019 permanency planning order, the trial court set the primary plan as reunification with a concurrent plan of custody or guardianship with a suitable adult.

¶ 4 Respondent-father entered into a case plan on 26 October 2018 which required him to complete a mental health and substance abuse assessment, to follow all of the resulting recommendations, and to submit to drug screens prior to visitation with Dana. The case plan was subsequently modified several times in order to include the completion of parenting classes, as well as additional substance abuse counselling and outpatient treatment for alcohol addiction

. Despite respondent-father's initial progress in addressing his substance abuse issues in the 16 September 2020 permanency planning order, the trial court made findings of fact which showed that respondent-father's progress with his case plan had stalled. The trial court relieved DSS of its efforts toward the reunification of respondent-father with the juvenile Dana and changed the permanent plan to adoption with a concurrent plan of custody or guardianship with a suitable adult.

¶ 5 DSS filed a motion to terminate parental rights of respondent-father on 30 September 2020, advancing these allegations as grounds for termination:

A. Per G.S. 7B-1111(a)(3) neither parent has not [sic ] paid any consistent support for the minor child, the juvenile having been placed in the custody of [DSS] for a continuous period of six months next preceding the filing of the petition, since the final Adjudication and Dispositional Order was entered. Both parents have willfully failed for such a period to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so, in that neither parent is disabled, is able to work, and has paid nothing towards the cost of care of the minor child during that period of time.

B. Per G.S. 7B-1111(a)(6) both parents are incapable of providing for the proper care and supervision of the juvenile such that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101, and there is a reasonable probability that such incapability will continue for the foreseeable future. Neither parent has provided for the financial or housing needs of the child since the child came into the custody of [DSS], and neither is prepared to do so now. The parents have done nothing to address or alleviate the conditions which led to the adjudication of this child as a neglected juvenile[.]²

¶ 6 At the conclusion of the termination hearing on 4 February 2021, the trial court announced that the evidence supported the termination of respondent-father's parental rights under N.C.G.S. § 7B-1111(a)(6). In the termination order entered on 3 March 2021, the trial court determined that grounds existed to terminate respondent-father's parental rights under N.C.G.S. § 7B-1111(a)(3), (6), and (7). The trial court rendered findings of fact in its decision which mirrored the language in DSS's termination motion. The trial court also made findings related to respondent-father's progress toward completing his case plan and his efforts toward reunification with Dana. Based on the findings of fact, the trial court reached the following conclusions of law related to the alleged grounds for termination of parental rights:

2. Grounds exist for the termination of the parental rights of the Respondent [p]arents;

3. [Dana] has been adjudicated a neglected juvenile and there remains a strong likelihood of a repetition of neglect if [she] was returned to either parent;

4. [Dana] has been left in foster care or other placement for more than one year without there being any reasonable progress made under the circumstances to correct conditions leading to [her] removal;

5. The parents have willfully abandoned [Dana] by failing to make reasonable efforts at completing a case plan in a timely manner, and not addressing the problems leading to removal of [Dana];

....

8. [DSS] has shown by clear, cogent and convincing evidence that the grounds exist to terminate the parental rights of the Respondent parents as more specifically set forth herein.

....

10. That grounds exist pursuant to N.C.G.S. § 7B-1111 for the termination of the parental rights of the Respondent parents.

The trial court ultimately concluded that it was in the juvenile Dana's best interests to terminate the parental rights of respondent-father, and thereupon terminated respondent-father's parental rights. Respondent-father appeals.

II. Arguments on Appeal

¶ 7 Respondent-father collaterally attacks the initial custody determination. He also challenges both the trial court's adjudication of grounds for termination of his parental rights and the trial court's conclusion of the best interests of the child. We address each argument in turn.

A. Initial Determination of Custody

¶ 8 Respondent-father first argues that, as the parent who did not commit the alleged wrongdoing which led to the juvenile Dana being placed in DSS custody, he was "unfairly denied custody" of Dana at the outset of the case because the trial court never found that he was unfit or that he acted inconsistently with his constitutionally protected status. Respondent-father contends that Dana should have been placed in his care upon her removal without a requirement for his compliance with a case plan.

¶ 9 Dana was adjudicated as neglected based upon the parents’ stipulation to facts which were alleged in the juvenile petition. At the disposition hearing, the trial court determined that it was in Dana's best interests for DSS to have custody of the juvenile and ordered the agency to assume custody.

¶ 10 Respondent-father had a right to appeal the adjudication and dispositional orders, see N.C.G.S. § 7B-1001(a)(3) (2021) (providing the right to appeal "[a]ny initial order of disposition and the adjudication order upon which it is based" to the Court of Appeals), but he failed to do so. Such failure to appeal "generally serves to preclude a subsequent collateral attack ... during an appeal of a later order terminating the parent's parental rights[,]" In re A.S.M.R. , 375 N.C. 539, 544, 850 S.E.2d 319 (2020), except that a collateral attack on an adjudication order or a dispositional order may be appropriate on appeal of an order terminating parental rights when said order "is void on its face for lack of jurisdiction[.]" Id. at 543, 850 S.E.2d 319 (quoting In re Wheeler , 87 N.C. App. 189, 193–94, 360 S.E.2d 458 (1987) ).

¶ 11 Respondent-father does not contend that either the adjudication order or the dispositional order is void, and we conclude that neither of the trial court's orders is void on its face for lack of jurisdiction. Because respondent-father failed to appeal the adjudication and dispositional orders, they remain valid and binding, and respondent-father is precluded from instituting a collateral attack on the trial court's custody determination in this appeal from the tribunal's order which terminated his parental rights.

B. Motion to Terminate Parental Rights

¶ 12 Respondent-father next challenges DSS's motion to terminate his parental rights to the child Dana, contending that the motion insufficiently alleges the grounds that the trial court found to exist in order to terminate his parental rights in Conclusions of Law 3, 4, and 5 of the trial court's order. A motion to terminate parental rights must include, inter alia , "[f]...