In re K.D.C.
| Decision Date | 11 December 2020 |
| Docket Number | No. 27A20,27A20 |
| Citation | 375 N.C. 784,850 S.E.2d 911 |
| Parties | In the MATTER OF: K.D.C. and A.N.C. |
| Court | North Carolina Supreme Court |
Vannoy, Colvard, Triplett & Vannoy, P.L.L.C., by Daniel S. Johnson, Winston-Salem, for petitioner-appellee Wilkes County Department of Social Services.
Erica M. Hicks, Charlotte, for appellee Guardian ad Litem.
Anné C. Wright, Boone, for respondent-appellant mother.
Respondent-mother appeals from the trial court's orders terminating respondent-mother's parental rights to her children K.D.C. and A.N.C. ("Katie" and "Anna").1 After careful review, we reverse.
On 15 January 2017, the Wilkes County Department of Social Services (DSS) received a report that Katie and Anna were living in an injurious environment due to improper care and supervision, moral turpitude, and substance abuse. At the time, Katie and Anna were living with their father and with K.S., their older brother. Respondent-mother was incarcerated on drug trafficking charges with a projected release date in 2020. A social worker went to the juveniles’ home to investigate the report and observed track marks on K.S.’s arms. A drug screen administered to K.S. on the day of the social worker's investigative visit to the residence was positive for methamphetamine and marijuana. The father agreed to a safety plan to ensure that Katie and Anna had sober caretakers, and K.S. agreed to refrain from providing care for, or allowing drugs around, his juvenile siblings. However, shortly thereafter, both the father and K.S. tested positive for the presence of methamphetamine upon their submission of drug screens to DSS. A social worker requested a safety placement for the juveniles, but the father was unable to identify family or friends that could qualify for kinship placements.
On 7 March 2017, DSS obtained non-secure custody of the juveniles and filed petitions alleging that Katie and Anna were neglected. On 24 April 2017, the trial court adjudicated Katie and Anna as neglected juveniles after the parties to the action stipulated to the allegations in the petition. The trial court ordered that custody of the juveniles remain with DSS and set the permanent plan as reunification, with a secondary plan of custody with an approved caretaker.
Following a review hearing held on 21 May 2018, the trial court entered an order in which it found that the father had completed his case plan, and that it was appropriate to begin a trial placement of Katie, along with her older sibling B.C.,2 with the father. Katie and B.C. were placed with the father in June 2018. The trial placement with the father was ceased, however, after DSS received a report alleging improper supervision and discipline by the father. Upon investigation of the report, DSS determined that B.C. had taken a car on a "joy ride" and had wrecked the vehicle. The father allegedly punched B.C. in the lip after the father learned of these events. Katie and B.C. were removed from the trial placement with the father and placed in foster care.
Following the disrupted trial placement, the father regressed in his behavior. The father tested positive for cocaine on 23 July 2018, did not appear for scheduled drug screens in August 2018, and admitted that he had started drinking alcohol and using cocaine. Additionally, DSS received a report that the father had inappropriately touched Anna and that the report was being investigated by the Wilkes County Sheriff's Department. DSS requested that the father complete an updated case plan, but he failed to do so and fell out of contact with DSS. In December 2018, the father was charged with drug-related offenses. With these developments, in an order entered on 15 January 2019, the trial court changed the permanent plan for the juveniles to adoption, with a secondary plan of custody. DSS was relieved of further reunification efforts.
On 23 April 2019, DSS filed petitions to terminate the parental rights of both respondent-mother and the father to Katie and Anna. DSS alleged that grounds existed to terminate both parent's parental rights on the grounds of neglect, failure to make reasonable progress, failure to pay support for the children, and dependency. N.C.G.S. § 7B-1111(a)(1)–(3), (6) (2019). DSS additionally alleged that grounds existed to terminate the father's parental rights due to abandonment. N.C.G.S. § 7B-1111(a)(7) (2019). On 1 October 2019, the trial court entered orders in which it determined that grounds existed to terminate respondent-mother's parental rights pursuant to N.C.G.S. § 7B-1111(a)(1), (2), and (6). The trial court further concluded that it was in the juveniles’ best interests that respondent-mother's parental rights be terminated. Accordingly, the trial court terminated the parental rights of respondent-mother to Katie and Anna.3
On 28 October 2019, respondent-mother gave written notice of appeal from the order terminating her parental rights to Katie. The record on appeal does not include proof that respondent-mother's notice of appeal was served on the other parties, as required by N.C. R. App. P. 3.1(b). However, neither DSS nor the guardian ad litem objected to this lack of service, and thus, any issue about the deficiency of service has been waived. See Hale v. Afro-Am. Arts Int'l, Inc. , 335 N.C. 231, 232, 436 S.E.2d 588, 589 (1993) ().
On 17 February 2020, respondent-mother filed a petition for writ of certiorari, seeking review of the order terminating her parental rights to Anna. Respondent-mother attached an affidavit to the petition, explaining that her trial counsel sent her notices of appeal concerning both Katie and Anna and instructed respondent-mother to sign them and then mail them to the Wilkes County Clerk of Court for filing purposes. Respondent-mother inadvertently mailed only the notice of appeal regarding Katie, which was timely filed. A notice of appeal concerning Anna was subsequently filed, but it was accomplished after the deadline for giving notice of appeal. On 1 April 2020, we allowed respondent-mother's petition for writ of certiorari as to Anna. Accordingly, we shall address the merits of respondent-mother's appeal as to both juveniles.
"Our Juvenile Code provides for a two-step process for termination of parental rights proceedings consisting of an adjudicatory stage and a dispositional stage." In re Z.A.M. , 374 N.C. 88, 94, 839 S.E.2d 792, 796–97 (2020) (citing N.C.G.S. §§ 7B-1109, -1110 (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, 700 (2019) (quoting N.C.G.S. § 7B-1109(f) (2019) ). We review a district court's adjudication of grounds to terminate parental rights "to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law." In re Montgomery , 311 N.C. 101, 111, 316 S.E.2d 246, 253 (1984). "The trial court's conclusions of law are reviewable de novo on appeal." In re C.B.C. , 373 N.C. 16, 19, 832 S.E.2d 692, 695 (2019).
In this case, the trial court determined that grounds existed to terminate respondent-mother's parental rights based on neglect, failure to make reasonable progress, and dependency. N.C.G.S. § 7B-1111(a)(1), (2), (6). To support its conclusion that these circumstances existed to terminate respondent-mother's parental rights pursuant to these statutory grounds, the trial court found as fact that Katie and Anna were previously adjudicated as neglected in April 2017.4 The trial court further found that respondent-mother entered into a case plan which required her to (1) complete parenting classes, (2) obtain and maintain employment and housing upon her release from custody, (3) complete a mental health assessment and follow all recommendations, and (4) complete a mental health and substance abuse assessment and follow all treatment recommendations. The trial court also found the following facts:
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