In re K.C.T.
| Citation | 850 S.E.2d 330,375 N.C. 592 |
| Decision Date | 20 November 2020 |
| Docket Number | No. 461A19,461A19 |
| Parties | In the MATTER OF: K.C.T. |
| Court | North Carolina Supreme Court |
Vannoy, Colvard, Triplett & Vannoy, P.L.L.C., North Wilkesboro, by Daniel S. Johnson, for petitioner-appellees.
No brief for appellee Guardian ad Litem.
Anné C. Wright, Boone, for respondent-appellant.
Respondent-mother appeals the trial court's order terminating her parental rights to her minor child K.C.T.1 After careful review, we reverse in part and reverse and remand in part.
On 9 October 2015, the Wilkes County Department of Social Services (DSS) placed Kelly in a voluntary kinship placement with petitioners, who are her paternal aunt and uncle. DSS became involved with the family after respondent-mother reported that Kelly's father was manufacturing methamphetamine in their home. The father was arrested and charged with multiple felony drug offenses as well as misdemeanor child abuse. Respondent-mother was not charged with any crimes.
On 8 January 2016, petitioners filed a civil custody action. On 18 April 2016, they were awarded sole legal and physical custody of Kelly. The custody order denied respondent-mother any visitation with Kelly "until she petition[ed] the Court to modify the Order."
On 12 March 2019, petitioners filed a petition seeking to terminate the parental rights of both of Kelly's parents on the grounds of neglect, willfully leaving Kelly in a placement outside the home for more than twelve months without making reasonable progress toward correcting the conditions that led to her removal, dependency, and willful abandonment. See N.C.G.S. § 7B-1111(a)(1)–(2), (6)–(7) (2019). Kelly's father then relinquished his parental rights. On 27 June 2019, the trial court appointed a guardian ad litem to represent respondent-mother's interests under Rule 17 of the North Carolina Rules of Civil Procedure. See N.C.G.S. § 1A-1, Rule 17 (2019).
The matter was heard on 13 August 2019. Ten days later, the trial court entered an order terminating respondent-mother's parental rights. The trial court concluded that respondent-mother's parental rights were subject to termination based on all four grounds alleged by petitioners and further concluded that termination was in Kelly's best interest. Respondent-mother appeals.
The termination of parental rights proceeds in two stages, beginning with an adjudicatory determination. See N.C.G.S. § 7B-1109 (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 (2019) (quoting N.C.G.S. § 7B-1109(f) ). "If a trial court finds one or more grounds to terminate parental rights under N.C.G.S. § 7B-1111(a), it then proceeds to the dispositional stage," id. at 6, 832 S.E.2d 698 , at which it "determine[s] whether terminating the parent's rights is in the juvenile's best interest." N.C.G.S. § 7B-1110(a) (2019).
In her brief, respondent-mother challenges each of the four grounds for termination found by the trial court. We begin with the ground both parties agree was improper: that respondent-mother willfully left Kelly in a placement outside the home for more than twelve months without making reasonable progress toward correcting the conditions that led to her removal under N.C.G.S. § 7B-1111(a)(2). The Court of Appeals previously held, relying on our decision in In re Pierce , 356 N.C. 68, 565 S.E.2d 81 (2002),2 that the "removal" contemplated by this ground "refers only to circumstances where a court has entered a court order requiring that a child be in foster care or other placement outside the home." In re A.C.F. , 176 N.C. App. 520, 525–26, 626 S.E.2d 729 (2006). In support of this holding, the Court of Appeals explained:
[A]n interpretation of "left ... in foster care or placement outside the home" and "removal" in G.S. § 7B-1111(a)(2) that broadly covers circumstances where parents leave their children in others’ care without regard to involvement of the juvenile court may lead to nonsensical results. There are an infinite variety of reasons parents decide to entrust their children's care to others. Oftentimes, these reasons will not implicate the child welfare concerns of the State. To allow the termination ground set forth in G.S. § 7B-1111(a)(2) to be triggered no matter what the cause for a child's separation from his parent is inconsistent with affording parents notice that they are at risk of losing their parental rights. Instead, it is logical that the General Assembly, in adopting G.S. § 7B-1111(a)(2), was primarily concerned with allowing termination where a juvenile court was involved in the "removal" of the child.
Id. at 525, 626 S.E.2d 729 (alteration in original). We find this reasoning persuasive and believe it applies with equal force to the circumstances of this case. Kelly entered petitioners’ custody when respondent-mother agreed to a voluntary kinship placement. Although petitioners later obtained full custody of Kelly through a civil custody order, that order was entered under Chapter 50 of our General Statutes and not under Chapter 7B. A Chapter 50 civil custody order does not provide sufficient notice to a parent that their parental rights would be imperiled by their loss of custody or inform the parent what steps would be necessary to make reasonable progress and avoid termination. Accordingly, we reverse the portion of the trial court's termination order that relies on this ground for termination.
The trial court also found that respondent-mother's rights were subject to termination based on dependency under N.C.G.S. § 7B-1111(a)(6). An adjudication under this ground requires the trial court to make two ultimate findings: (1) that the parent is incapable (and will continue to be incapable for the foreseeable future) of providing proper care and supervision to their child, rendering the child a "dependent juvenile" as defined by N.C.G.S. § 7B-101(9) (2019) ; and (2) that the parent lacks an appropriate alternative child care arrangement. N.C.G.S. § 7B-1111(a)(6) ; see In re K.R.C. , 374 N.C. 849, 859, 845 S.E.2d 56 (2020). Respondent-mother does not raise an argument with respect to the first required finding, and thus we do not discuss whether respondent-mother's alleged incapability rendered Kelly a dependent juvenile. But we agree with respondent-mother that the trial court failed to make the second required finding regarding an appropriate alternative child care arrangement, and thus its conclusion that dependency provides a ground for termination must be reversed. See In re E.L.E. , 243 N.C. App. 301, 308, 778 S.E.2d 445 (2015) ().
Petitioners argue that a finding regarding an alternative child care arrangement was unnecessary because respondent-mother "did not come forward with an alternative child care arrangement." However, the burden was on petitioners to show that respondent-mother lacked a suitable alternative child care arrangement, and they presented no evidence to meet their burden. See N.C.G.S. § 7B-1109(f) (). Respondent-mother was not questioned about potential alternative child care arrangements during her testimony, and no other witness addressed the issue. Since the trial court failed to make this required finding and no evidence was presented that would allow it to make such a finding, the portion of the trial court's order relying upon this ground for termination must be reversed. See id.
The trial court also found that termination was warranted based on neglect. Under N.C.G.S. § 7B-1111(a)(1), a trial court may terminate a parent's rights if that parent has neglected their child. A neglected juvenile is one "whose parent, guardian, custodian, or caretaker does not provide proper care, supervision, or discipline; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare." N.C.G.S. § 7B-101(15). When it cannot be shown that the parent is neglecting his or her child at the time of the termination hearing because "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 (2016) (citing In re Ballard , 311 N.C. 708, 713–15, 319 S.E.2d 227 (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 (2019) (citing Ballard , 311 N.C. at 715, 319 S.E.2d 227 ).
At the time of the termination hearing on 13 August 2019, Kelly had been out of respondent-mother's care for almost four years. Respondent-mother argues the trial court's findings fail to address the likelihood of future neglect if Kelly was returned to her care.3 She acknowledges the trial court found that "[s]ince the minor child has been in the custody of the Petitioners, the Respondent-Mother's circumstances have not improved such that she would be able to provide proper care for the child" but argues that this finding is both inadequate to satisfy the two-part neglect test and unsupported by the evidence. Since we agree with respondent-mother that the record evidence does not support this finding of fact, we need not consider whether the finding, if adequately supported, demonstrated a likelihood of repetition of neglect.
At the time Kelly entered petitioners’ care she was living with...
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