In re N.D.A.

• Decision Date: 01 November 2019
• Docket Number: No. 184A19,184A19
• Parties: In the MATTER OF: N.D.A.
• Court: North Carolina Supreme Court

373 N.C. 71

833 S.E.2d 768

In the MATTER OF: N.D.A.

No. 184A19

Supreme Court of North Carolina.

Filed November 1, 2019

Vannoy, Colvard, Triplett & Vannoy, P.L.L.C., Winston-Salem, by Daniel S. Johnson, for petitioner-appellee.

Wendy C. Sotolongo, Parent Defender, by Annick Lenoir-Peek, Deputy Parent Defender, for respondent-appellant father.

ERVIN, Justice.

Respondent-father Mickey W. appeals from the trial court's order terminating his parental rights in his minor child, N.D.A.,¹ on the grounds of neglect and willful abandonment. Because we conclude that the findings in the trial court's order are insufficient to support the termination of respondent-father's parental rights on either of the grounds upon which the trial court's termination order rests, we vacate the trial court's termination order and remand this case to the District Court, Wilkes County, for further proceedings not inconsistent with this opinion.

Respondent-father is Nancy's biological father, while petitioner Heather S. is Nancy's legal custodian. In January 2014, Nancy and her biological mother, Heaven C., moved into petitioner's residence. At that time, the two adult women were involved in a romantic relationship. Nancy and her mother continued to live in petitioner's residence for the next year and a half.

In July 2015, the Wilkes County Department of Social Services began investigating a report arising from concerns about the mother's mental health, parenting skills, and failure to properly care for and supervise Nancy. At that time, Nancy was left in petitioner's care as part of a safety placement while DSS provided Nancy's mother with case management services. However, in December 2015, the mother told DSS that she was unable to properly care for Nancy. As a result, DSS filed a petition alleging that Nancy was a neglected and dependent juvenile. At the time that DSS filed this petition, respondent-father was incarcerated and had a projected release date of 4 December 2016.

After a hearing held on 1 February 2016, Judge David V. Byrd entered an order on 20 February 2016 finding Nancy to be a neglected and dependent juvenile, awarding legal and physical custody of Nancy to petitioner, and releasing DSS from any further responsibility relating to Nancy's care and supervision. In the 20 February 2016 order, Judge Byrd ordered that neither parent would be allowed to visit Nancy while incarcerated and that, in the event that either parent was not incarcerated, he or she was entitled to a minimum of one hour of supervised visitation with Nancy two times per month, with the necessary supervision to be provided by petitioner, a person or organization approved by petitioner, or personnel associated with "Our House."

Although respondent-father was released from incarceration in December 2016, he did not contact or visit Nancy following his release. In August 2018, petitioner contacted respondent-father, through social media, and the mother, by phone, for the purpose of requesting that they relinquish their parental rights in Nancy so that petitioner could adopt her. However, neither of Nancy's parents acceded to this request. Shortly thereafter, respondent-father was charged with and convicted of felonious breaking and entering. Respondent-father's current projected release date is July 2020.

On 14 August 2018, petitioner filed a petition seeking to have both parents’ parental rights in Nancy terminated on the grounds of neglect and willful abandonment. See N.C.G.S. § 7B-1111(a)(1) and (7) (2017). After a hearing held on 27 February 2019, the trial court entered an order on 18 March 2019 finding that grounds existed to terminate respondent-father's and the mother's parental rights in Nancy based upon both of the grounds alleged in the petition and that the termination of both parents’ parental rights in Nancy would be in the child's best interests. Respondent-father noted an appeal from the trial court's termination order to the Court of Appeals.

As an initial matter, we note that, even though respondent-father noted his appeal from the trial court's order in a timely manner, he erroneously designated the Court of Appeals, rather than this Court, as the judicial body to which his appeal would lie. See N.C.G.S. §§ 7A-27(a)(5), 7B-1001(a1)(1) ; N.C. R. App. P. 3(d), 3.1(a). In spite of this deficiency in respondent-father's notice of appeal, petitioner has not sought the dismissal of respondent-father's appeal and respondent-father has not filed a petition seeking the issuance of a writ of certiorari authorizing review of the trial court's termination order. In light of the seriousness of the issues involved in this termination of parental rights case, petitioner's failure to raise any issue arising from respondent-father's defective notice of appeal, and the fact that the appellate entries signed by the trial court correctly designate this Court as the body to which respondent-father's appeal would lie, we elect to treat respondent-father's brief as a certiorari petition and issue a writ of certiorari authorizing review of respondent-father's challenges to the trial court's termination order on the merits. See N.C. R. App. P. 21(a)(1) (stating that "[t]he writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action"); see also In re Z.L.W. , 831 S.E.2d 62, 65 (N.C. 2019) (stating that this Court granted the respondent-father's certiorari petition given that his notice of appeal improperly designated the Court of Appeals as the court to which his appeal from the trial court's order had been taken).

In seeking relief from the trial court's termination order before this Court, respondent-father contends that the trial court erred by terminating his parental rights in Nancy on the grounds that the trial court's findings of fact do not support the trial court's conclusion that respondent-father's parental rights in Nancy were subject to termination on the grounds of neglect and willful abandonment. The relevant provisions of the North Carolina General Statutes establish a two-stage process for the termination of a parent's parental rights in a juvenile. N.C.G.S. §§ 7B-1109, -1110 (2017). At the adjudicatory stage, the petitioner bears the burden of proving by "clear, cogent, and convincing evidence" that one or more of the grounds for termination delineated in N.C.G.S. § 7B-1111 exist. N.C.G.S. § 7B-1109(e), (f). "If [the trial court] determines that one or more grounds listed in section 7B-1111 are present, the court proceeds to the dispositional stage, at which the court must consider whether it is in the best interests of the juvenile to terminate parental rights." In re D.L.W. , 368 N.C. 835, 842, 788 S.E.2d 162, 167 (2016) (citing In re Young , 346 N.C. 244, 247, 485 S.E.2d 612, 614–15 (1997) ; N.C.G.S. § 7B-1110 ). This Court reviews a trial court's adjudication decision pursuant to N.C.G.S. § 7B-1109 "in order 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) (citing In re Moore , 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982) ), with the trial court's conclusions of law being subject to de novo review on appeal. In re S.N. , 194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008), aff'd per curiam , 363 N.C. 368, 677 S.E.2d 455 (2009).

In its termination order, the trial court made the following findings of fact in support of its conclusion that respondent-father's parental rights in Nancy were subject to termination on the grounds of neglect and willful abandonment:

8. The Father has had no contact with the Petitioner and has not participated in any visitation. He has been incarcerated since August 2018. The Father has a significant criminal record dating back to 1999.

9. The Father has had no contact with the minor child in four years. He testified that he attempted to set up visits with the child but could not get any assistance in doing so.

10. The Father has had significant problems with substance abuse for many years.

....

13. Neither [parent] has ever provided financial support for the minor child.

14. Neither [parent] has ever sent any cards, gifts, or usual and customary tokens of affection to the minor child.

15. The child has been neglected by the [parents] as that term is defined in Chapter 7B of the General Statutes. The [parents] have not provided any type of support or care for the child. Their actions reflect an indifference to the welfare and well-being of the child.

16. The [parents] willfully abandoned the child as that term is defined by N.C.G.S. § 7B-1111(a)(7) for the six months immediately preceding the filing of the petition in this matter.

As an initial matter, respondent-father contends that a number of the trial court's findings of fact are legally defective. More specifically, respondent-father asserts that the second sentence contained in Finding of Fact No. 9 consists of nothing more than a mere recitation of his own testimony and is not, for that reason, a valid finding of fact. We agree with the Court of Appeals that "[r]ecitations of the testimony of each witness do not constitute findings of fact by the trial judge." Moore v. Moore , 160 N.C. App. 569, 571–72, 587 S.E.2d 74, 75 (2003) (citation omitted). By stating that respondent-father had testified that he had "attempted to set up visits with the child but could not get any assistance in doing so," the trial court failed to indicate whether it deemed the relevant portion of respondent-father's testimony credible. As a result, we are compelled to disregard the second sentence contained in Finding of Fact No. 9 in evaluating the validity of the trial court's termination order.

In addition, respondent-father contends that Finding of Fact No. 10 lacked...