In re J.C. & District Columbia

• Decision Date: 18 March 2022
• Docket Number: 166A21
• Citation: 380 N.C. 738,869 S.E.2d 682
• Parties: In the MATTER OF: J.C. and D.C.
• Court: North Carolina Supreme Court

380 N.C. 738

869 S.E.2d 682

In the MATTER OF: J.C. and D.C.

No. 166A21

Supreme Court of North Carolina.

Filed March 18, 2022

Justin B. Greene, Bryson City, for petitioner-appellee Swain County Department of Social Services.

Womble Bond Dickinson (US) LLP, Raleigh, by Jonathon D. Townsend and Theresa M. Sprain, for appellee Guardian ad Litem.

Edward Eldred, for respondent-father.

J. Lee Gilliam, for respondent-mother.

MORGAN, Justice.

¶ 1 Respondent-parents appeal from an order terminating their parental rights to two of their children: "Dylan," born on 15 February 2009 and "Julia," born on 23 September 2005.¹ Under our legal precedent, it is clear that the order filed by the trial court in this case contains an incorrect statement of the applicable standard of proof, leaving for this Court's resolution only the issue of the proper remedy for this error. After reviewing the pertinent precedent, we conclude that the trial court order must be reversed and that the case should be remanded to the trial court for further proceedings.

I. Factual and Procedural Background

¶ 2 Respondents are the parents of three children, including Dylan and Julia, who are the subjects of the termination of parental rights order under review in this matter. The Swain County Department of Social Services (DSS) became involved with respondents’ family household and investigated it in the spring of 2015 and January 2016 based upon concerns regarding the sanitary conditions of the family home and the children's receipt of an appropriate education after the children were withdrawn from their schools. These case investigations were closed with no services recommended for respondents or their children. However, DSS became involved with respondents and their household again after concerns were registered about the welfare of the child of another family who began to reside in respondents’ home. In early 2016, respondents allowed three minor siblings unrelated to respondents—"Ryan," "Charlotte," and "Ava"—to live in respondents’ household in order to help those children's parents to improve their ability to care for their children. One of the parents was dealing with a substance abuse issue and the other parent was a registered sex offender. On 4 April 2016, Ryan, who at the time was four years of age, was admitted to a hospital emergency room with life-threatening, non-accidental injuries which required his transport to a pediatric intensive care unit. When brought to the hospital, Ryan was alleged to have been "unresponsive," with a temperature of 87 degrees, a pulse rate of 40, and to have been "covered with bruises, cuts and lesions." Ryan "was given Narcan

for overdose symptoms[ ] and immediately responded to th[at] treatment." During various interactions and interviews which were conducted as part of the investigation which DSS undertook subsequent to Ryan's hospital admission, respondents’ three children described a number of incidents which could be deemed to constitute physical assaults and sexual abuse by respondents against all of the children who were residing in respondents’ home: respondents’ children, Ryan, and Ryan's siblings.²

¶ 3 As a result of Ryan's injuries and resulting condition, on 5 April 2016 DSS filed petitions alleging, inter alia , that Ryan was an abused juvenile and that Ryan, Ryan's two siblings and respondents’ three children—including Dylan and Julia—were neglected juveniles. DSS also took custody of all six children who were living in respondents’ home at the time. On 20 July 2017, the trial court entered an order which, inter alia ,³ adjudicated respondents’ children as neglected juveniles. On 22 January 2018, the trial court entered an initial order of disposition which established various components of respondents’ case plans with which they were to comply, relieved DSS of further efforts to reunify the children with respondents and continued the children's placement outside respondents’ home. In November 2018, upon appeal by respondents, the Court of Appeals affirmed the adjudication order but reversed the disposition order in part, specifically to the extent that it relieved DSS of further reunification efforts and eliminated reunification from the children's permanent plan and remanded the matter to the trial court for further proceedings. See In re D.C. , 262 N.C. App. 372, 820 S.E.2d 595 (2018) (unpublished). Following a hearing upon remand in July 2019, the trial court entered a new disposition order setting the primary permanent plan as reunification with a secondary plan of adoption; conducted permanency planning hearings; and entered subsequent permanency planning orders. In December 2019, DSS requested that Julia's and Dylan's primary plans be changed to adoption. At a permanency planning hearing in January 2020, the trial court announced that it would change Julia's and Dylan's permanent plans to adoption.⁴

¶ 4 On 10 June 2020, DSS filed a petition to terminate respondents’ parental rights to Dylan and Julia.⁵ The petition advanced three grounds to support the termination of respondents’ parental rights to these juveniles: neglect, a willful failure to make progress correcting removal conditions, and a willful failure to pay the costs of care. See N.C.G.S. § 7B-1111(a)(1), (2), (3) (2021). Among other contentions, the petition alleged that: (1) respondents’ criminal charges remained pending; (2) respondents had not completed their case plans; (3) both children were diagnosed with post-traumatic stress disorder

as a result of their time spent with respondents; and (4) the children's therapists recommended no contact between the children and respondents. DSS asked the trial court to find that grounds existed to terminate the parental rights of respondents "beyond a reasonable doubt."

¶ 5 Following a hearing on the petition for termination of parental rights on 2 February 2021, the trial court directed DSS to make findings of fact "based upon the evidence presented," and the trial court announced that it would find "grounds one and two, specifically neglect and traumas and foster care." At the end of the disposition phase of the proceedings, the trial court again directed DSS to make findings of fact "based upon the evidence presented" and the trial court announced that it would find "it is in the best of to terminate [sic] the parental rights of the respondents." The trial court did not state at any point during the hearing or during the trial court's announcement of its determination that grounds existed to terminate respondents’ parental rights that it was employing the "clear, cogent, and convincing" standard of proof which applies in termination of parental rights proceedings. The trial court subsequently entered a written order on 29 March 2021 which terminated respondents’ parental rights to Dylan and Julia. The trial court's written order included a statement that the trial court made its findings of fact "by a preponderance of the evidence." Respondents appeal.⁶

II. Analysis

¶ 6 The Juvenile Code in North Carolina mandates that a trial court's adjudicatory findings of fact in a termination of parental rights order "shall be based on clear, cogent, and convincing evidence." N.C.G.S. § 7B-1109(f) (2021) ; see also In re B.L.H. , 376 N.C. 118, 124, 852 S.E.2d 91 (2020). Clear, cogent, and convincing evidence is an intermediate standard of proof which is "greater than the preponderance of the evidence standard required in most civil cases." In re Montgomery , 311 N.C. 101, 109–10, 316 S.E.2d 246 (1984) (citing Santosky v. Kramer , 455 U.S. 745, 769, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ). The statutory burden of proof by clear, cogent, and convincing evidence as provided in N.C.G.S. § 7B-1109(f) also protects a parent's constitutional due process rights as enunciated by the United States Supreme Court in Santosky, 455 U.S. at 747–48, 102 S.Ct. 1388 ("Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence."); see also Adams v. Tessener , 354 N.C. 57, 63, 550 S.E.2d 499 (2001) (holding that a trial court's determination that "a parent's conduct is inconsistent with his or her constitutionally protected status must be supported by clear and convincing evidence."). Although the "clear, cogent, and convincing" burden of proof in termination of parental rights proceedings is a firmly rooted standard, this Court has necessarily addressed the considerations which a trial court must employ and incorporate in its determinations so as to demonstrate the trial court's compliance with the "clear, cogent, and convincing evidence" principle enunciated in N.C.G.S. § 7B-1109(f).

¶ 7 In In re B.L.H. , this Court held "that a trial court does not reversibly err by failing to explicitly state the statutorily-mandated standard of proof in the written termination order if ... the trial court explicitly states the proper standard of proof in open court at the termination hearing." 376 N.C. at 120–21, 852 S.E.2d 91. In reaching this result, we examined the statutory language utilized in N.C.G.S. § 7B-1109(f) that "all findings of fact shall be based on clear, cogent, and convincing evidence" and concluded "that the statute implicitly includes a requirement that the trial court announce the standard of proof it is applying in making findings of fact in a termination proceeding," both to avoid rendering portions of the statute "useless" and to permit a reviewing court to ensure that the proper standard of proof was utilized by the trial court. Id. at 122–24, 852 S.E.2d 91. We expressly declined, however, to extend this requirement that a trial court "announce" the proper standard of proof to a mandate that the standard be explicitly stated in the trial court's written termination of parental rights order. Id. at 126, 852 S.E.2d 91. Thus, "the trial court satisfies the...