In re D.T.H.

• Decision Date: 24 September 2021
• Docket Number: No. 382A20,382A20
• Citation: 862 S.E.2d 651,378 N.C. 576
• Parties: In the MATTER OF: D.T.H.
• Court: North Carolina Supreme Court

378 N.C. 576

862 S.E.2d 651

In the MATTER OF: D.T.H.

No. 382A20

Supreme Court of North Carolina.

Filed September 24, 2021

Mark L. Hayes, for petitioner-appellees.

Richard Croutharmel, Raleigh, for respondent-appellant father.

ERVIN, Justice.

¶ 1 Respondent-father Thomas H. appeals from a trial court order terminating his parental rights in the minor child D.T.H.¹ After careful review of respondent-father's challenges to the trial court's termination order in light of the record and the applicable law, we hold that the legally valid findings of fact contained in the trial court's termination order do not suffice to support a conclusion that respondent-father's parental rights in David were subject to termination. As a result, we reverse the trial court's termination order and remand this case to the District Court, Carteret County, for further proceedings, including the making of new findings of fact and conclusions of law with respect to the issue of whether respondent-father's parental rights in David were subject to termination on the basis of neglect by abandonment, N.C.G.S. § 7B-1111(a)(1), or abandonment, N.C.G.S. § 7B-1111(a)(7).

I. Factual Background

¶ 2 David was born in Craven County in March 2007 to respondent-father and the mother Brandi C. Although respondent-father and the mother married in July 2007, they separated during the following August. After the parents separated, the mother and David resided with David's maternal grandparents, who are the petitioners in this case. On 8 September 2008, the mother filed a complaint against respondent-father seeking a divorce from bed and board, custody, and child support. Following the maternal grandparents’ decision to intervene in this proceeding for the purpose of seeking to have David placed in their custody, respondent-father filed an answer in which he stated that neither he nor the mother should have custody of David. On 15 April 2010, Judge Cheryl L. Spencer entered a temporary order determining that the mother was unable to care for David on her own, that the maternal grandparents had "insured [David's] well-being and safety," that neither parent should be awarded custody of David at that time, and that it was not in "the best interest of the minor child that [either parent] have visitation, except as agreed upon by [the maternal grandparents], and [the mother] or [respondent-father]." As a result, Judge Spencer concluded that the maternal grandparents "[we]re fit and proper persons for the temporary sole care, custody, and control of the minor child" and placed David in their custody.

¶ 3 On 20 September 2011, the trial court entered an order finding that Judge Spencer's temporary order had remained unmodified since its entry and concluding that it was in David's best interests that the temporary order become permanent. In light of those determinations, the trial court awarded the maternal grandparents "permanent sole care, custody and control, and the residential placement of the minor child" and allowed the parents to visit with him "only at such times, places, and under such conditions, as agreed upon specifically by [the maternal grandparents], and [the mother] or [respondent-father]."

¶ 4 In 2011, the maternal grandmother obtained overseas employment with the Department of Defense and was eventually stationed in Japan. Following the maternal grandfather's retirement from his own employment a few months later, he and David joined the maternal grandmother in Japan in 2013. After David had resided in Japan for three years, the maternal grandparents moved, with David, to Bahrain in 2016 and to Kaiserslautern, Germany, in 2018.

¶ 5 On 20 July 2018, the maternal grandparents filed a petition seeking to have respondent-father's parental rights in David terminated on the basis of neglect, N.C.G.S. § 7B-1111(a)(1) ; dependency, N.C.G.S. § 7B-1111(a)(6) ; abandonment, N.C.G.S. § 7B-1111(a)(7) ; and the fact that respondent-father had voluntarily relinquished his parental rights in another juvenile and lacked the ability or willingness to establish a safe home, N.C.G.S. § 7B-1111(a)(9).² After a guardian ad litem was appointed in this proceeding, she conducted interviews with each of the parties between November 2018 and July 2019 and submitted a dispositional report that was dated 22 January 2019 and amended on 29 July 2019 in which she recommended that the maternal grandparents’ termination petition be denied. On 18 February and 29 July 2019, the trial court conducted a hearing for the purpose of addressing the issues raised by the termination petition at which testimony was received from the maternal grandfather, respondent-father, the mother, the paternal grandmother, the paternal grandfather, and the guardian ad litem. On 5 June 2020, the trial court entered an order determining that respondent-father's parental rights in David were subject to termination on the basis of neglect, N.C.G.S. § 7B-1111(a)(1) ; dependency, N.C.G.S. § 7B-1111(a)(6) ; and abandonment, N.C.G.S. § 7B-1111(a)(7), and that it would be in David's best interests for respondent-father's parental rights to be terminated, N.C.G.S. § 7B-1110(a) (2019). Respondent-father noted an appeal to this Court from the trial court's termination order.

II. Substantive Legal Analysis

A. Standard of Review

¶ 6 In seeking relief from the trial court's termination order before this court, respondent-father contends that several of the trial court's findings of fact are legally deficient and that the trial court had erred by concluding that his parental rights in David were subject to termination. According to well-established North Carolina law, a termination of parental rights proceeding involves the use of a two-step process consisting of an adjudicatory hearing and a dispositional hearing. N.C.G.S. §§ 7B-1109, -1110 (2019). At the adjudicatory hearing, at which the petitioner or movant bears the burden of proof, N.C.G.S. § 7B-1110(f), the trial court, sitting without a jury, hears the evidence and makes findings of fact in the course of determining whether any of the grounds for termination enumerated in N.C.G.S. § 7B-1111(a) exist. In the event that the trial court finds the existence of one or more of the statutory grounds for termination enumerated in N.C.G.S. § 7B-1111(a), it is required to "determine whether terminating the parent's rights is in the juvenile's best interest." Id. § 1110(a). This Court reviews a trial court's adjudication order "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 (2019) (quoting In re Montgomery , 311 N.C. 101, 111, 316 S.E.2d 246 (1984) ), with "[u]nchallenged findings of fact made at the adjudicatory stage [being] binding on appeal," In re D.W.P. , 373 N.C. 327, 330, 838 S.E.2d 396 (2020) (citing Koufman v. Koufman , 330 N.C. 93, 97, 408 S.E.2d 729 (1991) ), and with "the trial court's conclusions of law [being] subject to de novo review on appeal." In re N.D.A. , 373 N.C. 71, 74, 833 S.E.2d 768 (2019) (citing In re S.N. , 194 N.C. App. 142, 146, 669 S.E.2d 55 (2008), aff'd per curiam , 363 N.C. 368, 677 S.E.2d 455 (2009) ).

B. Findings of Fact

¶ 7 In its termination order, the trial court found as fact that:

9. The [maternal grandfather] testified that the juvenile has resided with the [maternal grandparents] since April 2010. [Respondent-father] has had no significant contact with the juvenile for the last eight full years. [Respondent-father] has not provided significant support for the juvenile for over eight years. The [maternal grandparents] further testified that the juvenile is a healthy and happy child.

10. [Respondent-father] has had no relationship with the juvenile, and the juvenile does not have a significant relationship with [respondent-father].

11. [Respondent-father] testified, as follows:

a. [Respondent-father] does not pay his child support. His child support obligation is paid by his father. He has not worked for the last year and a half.

b. [Respondent-father] has not made any effort to contact the juvenile.

c. [Respondent-father], in his testimony, referred to himself as being on a "path of destruction." d. [Respondent-father] has no vehicle, no driver's license, no place of his own, and no job. [Respondent-father] resides with his girlfriend and testified that he currently pays no household bills and has applied for disability due to an injury to his right arm.

....

g. [Respondent-father] never tried to enforce his court-ordered visitation.

h. Based upon the evidence presented and in light of the long pattern of past behavior, [respondent-father] does not have the capability of maintaining a relationship with the juvenile, nor does he have the ability to care for the juvenile.

¶ 8 As an initial matter, respondent-father argues that the trial court erred by stating in Finding of Fact No. 9 that he had had no significant contact with David for eight years on the grounds that "[he had] had plenty of contact with David over the years despite [the maternal grandparents’] attempts to prevent it." In evaluating the validity of this aspect of respondent-father's challenge to Finding of Fact No. 9, we begin by noting that, at an absolute minimum, the first and last sentences contained in Finding of Fact No. 9, which state that the maternal grandfather "testified that the juvenile has resided with the [maternal grandparents] since April 2010" and that the maternal grandparents had "further testified that the juvenile is a healthy and happy child," take the form of recitations of the testimony that was provided at the termination hearing by the maternal grandfather rather than proper findings of fact. See N.C. Gen. Stat. § 1A-1, Rule 52 (2019) (providing that, "[i]n all actions tried upon the facts without a jury ..., the court shall find the facts specially ...."); In re N.D.A. , 373 N.C. at 75, 833 S.E.2d 768 (stating th...