In re K.N., 110A19-2

Docket Nº110A19-2
Citation2022 NCSC 88
Case DateJuly 15, 2022
CourtUnited States State Supreme Court of North Carolina



No. 110A19-2

Supreme Court of North Carolina

July 15, 2022

Appeals pursuant to N.C. G.S. § 7B-1001(a1)(1) from orders entered on 29 March 2021 by Chief Judge Teresa H. Vincent in District Court, Guilford County. This matter was calendared for argument in the Supreme Court on 1 July 2022 but determined on the record and briefs without oral argument pursuant to Rule 30(f) of the North Carolina Rules of Appellate Procedure.

Mercedes O. Chut for petitioner-appellee Guilford County Department of Health and Human Services.

Erica M. Hicks for appellee Guardian ad Litem.

Jeffrey William Gillette for respondent-appellant father.


¶ 1 Respondent-appellant appeals from the trial court's 29 March 2021 order terminating his parental rights asserting violations of Rules 52 and 63 of the North Carolina Rules of Civil Procedure. Upon review, we vacate the order of the trial court and remand for a new hearing.


I. Factual and Procedural Background

¶ 2 This is the second time our Court has heard an appeal in this case. For a thorough discussion of all background material, we refer the reader to our prior opinion. In re K.N., 373 N.C. 274 (2020). Here, we discuss only those background and procedural facts relevant to this appeal.

¶ 3 Respondent is the biological father of Keith.[1] On 6 February 2017 the Guilford County Department of Health and Human Services (DHHS) filed a petition alleging that Keith was neglected and dependent. On 21 July 2017 the district court found Keith to be neglected and dependent. On 15 March 2018 DHHS filed a petition to terminate respondent's parental rights. On 28 November 2018 the district court terminated respondent's parental rights to Keith.

¶ 4 In its termination order, the court highlighted respondent's incarceration and pending criminal charges; his housing situation; his "diluted" and delayed drug tests; his lack of steady income; and his alleged failure to complete a Domestic Violence Intervention Program.

¶ 5 Respondent appealed the termination of his parental rights. In re K.N., 373 N.C. at 277. On 24 January 2020 we vacated the district court's termination order and remanded the case for further proceedings. Id. at 285. Our Court held that some of the findings in the district court's order-specifically, that respondent had not


completed a required Domestic Violence Intervention Program-were not supported by the evidence. Id. at 281. We further held that the remaining findings of fact enumerated in the district court's order were insufficient to support a determination that respondent neglected Keith. Id. at 284. In fact, many of the district court's written findings indicated that respondent was complying with his case plan. We observed that "[t]he only factual finding that directly addresses respondent's ability to care for Keith" is the finding that respondent was incarcerated and awaiting trial at the time of the termination hearing. Id. at 282. Our case law squarely establishes that "incarceration, by itself, cannot serve as clear, cogent, and convincing evidence of neglect." Id. at 282-83. Only when the court finds that the unique circumstances, beyond the mere fact of incarceration, suggest neglect is likely, can this fact weigh in favor of termination. The district court's order did not reflect this type of analysis, and we so held. Id.

¶ 6 At the same time, we noted that "the trial court could have made additional findings of fact . . . that might have been sufficient to support" an order terminating respondent's parental rights to Keith. Id. at 284. We pointed to other evidence in the record, such as respondent's history of drug abuse, that could potentially weigh in favor of termination. We also noted, as discussed in the paragraph above, that a more detailed analysis of the circumstances of respondent's incarceration might also support termination. But we were clear that any future order terminating


respondent's parental rights would need to be sufficiently supported by "appropriate" findings, additional explanation, or some combination of both. Id. at 284-85. Thus, we explicitly noted that the trial court, on remand, "shall have the discretion to determine whether the receipt of additional evidence is appropriate." Id. at 285.

¶ 7 On remand, the matter was assigned to a substitute judge. Tragically, the original district court judge, the Honorable Judge H. Thomas Jarrell, had passed away in August 2019. In a pre-trial conference following remand, respondent's newly appointed attorney initially objected to assigning a substitute judge to revise a vacated order based on evidence the substitute judge did not hear. However, on 18 September 2020, all parties agreed that the matter could be assigned to Chief District Court Judge Teresa H. Vincent per Rule 63.

¶ 8 On 5 January 2021, Chief Judge Vincent heard from the parties at a pre-trial conference. In a written order signed on 15 January 2020 and filed on 20 January 2020, the Chief Judge indicated her intent to review the record, the trial transcripts, and any proposed findings of fact that the parties wished to submit for consideration. While Chief Judge Vincent acknowledged that she could, in her discretion, reopen the evidence, she did not hold any additional hearings.

¶ 9 On 29 March 2021 Chief Judge Vincent issued a new order finding that Keith was neglected and terminating respondent's parental rights. This new order directly addressed many of the deficiencies in the first termination order that our Court had


identified. For example, the old termination order only briefly touched on respondent's criminal record: "[Respondent] was to cooperate with the terms of his probation. [Respondent] was to resolve his pending criminal charges and not incur any new criminal charges. [Respondent] has violated his probation and his case plan by incurring new charges." In contrast, the new termination order analyzed respondent's criminal history at length, and explained why this history supported termination:

[Respondent] has a history of engaging in a criminal lifestyle that has prevented him from providing an appropriate and safe home for the juvenile in the past. Given [respondent's] criminal record, probation violations, and lack of progress in resolving his involvement with the criminal justice system, there is a high likelihood that [Keith] would be neglected if he were returned to [respondent's] care

In another example, the old termination order simply noted that respondent had submitted several "diluted" drug tests, and that on one occasion he had delayed taking a drug test. The new termination order went much further:

[Respondent] has a long history of substance abuse problems as demonstrated by his many convictions on drug-related charges and the diagnosis by his former counselor Mr. Albert Linder of alcohol use disorder (severe), cocaine use disorder (severe in full remission), and marijuana use disorder (mild to moderate), as well as anxiety disorder and post-traumatic stress disorder. [Respondent's] dilatory tactics with respect to the random drug screening required by his case plan indicates lack of genuine progress in overcoming substance abuse problems. By way of

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