In re Pierce

• Decision Date: 28 June 2002
• Docket Number: No. 647A01.,647A01.
• Citation: 565 S.E.2d 81
• Parties: In the Matter of Kristina Taylor Lindsey PIERCE.
• Court: North Carolina Supreme Court

565 S.E.2d 81

In the Matter of Kristina Taylor Lindsey PIERCE.

No. 647A01.

Supreme Court of North Carolina.

June 28, 2002.

Julia Talbutt, Wilmington, for petitioner-appellant, New Hanover County Department of Social Services.

R. Clarke Speaks, Wilmington, for respondent-appellee, Dawn A. Cole.

Ruthanne Southworth, Guardian ad Litem by Attorney Advocate, Regina Floyd-Davis, Wilmington, appellant.

ORR, Justice.

The New Hanover County Department of Social Services, petitioner, appeals from a Court of Appeals decision concluding that Dawn A. Cole, respondent, had made reasonable progress in correcting the conditions that led to the removal of her minor child from the family home. We affirm.

This appeal arises out of a dispute between DSS and Ms. Cole over the custody of Ms. Cole's daughter, Kristina Taylor Lindsay Pierce. At the time of her birth, on 28 June 1997, Kristina tested positive for cocaine. As a result, she was initially placed in the care of her paternal grandmother, Linda Weeks. Less than a month later, Ms. Weeks informed DSS that because of her advanced age, she could not properly care for the child. Kristina was then placed back in the care of her natural parents, Ms. Cole and James Pierce. At the time, Ms. Cole was participating in a substance treatment program. However, just two weeks later, DSS discovered that she had tested positive for cocaine at least three times since Kristina was born.

In August of 1997, a trial court awarded custody of the child to DSS, and she was placed in foster care. In October of that same year, Mr. Pierce was arrested and imprisoned. Shortly thereafter, Ms. Cole moved to Maryland to live with her mother. In June of 1998, Mr. Pierce was released from prison. Then, on 4 December 1998, Kristina was placed in the custody of Pierce's first cousin, Wendy Sellers, and her husband, Jesse Sellers, in Charlotte, North Carolina.

In the summer of 1999, DSS petitioned the trial court to terminate Ms. Cole's parental rights to the child. At the time of the hearing, which commenced in late October of 1999, Kristina was two and a half years old and continued to live with Mr. and Mrs. Sellers. Following a two-day inquiry, the trial court ultimately entered an order on 28 December 1999 terminating Ms. Cole's parental rights. On appeal by Ms. Cole, the majority of a split panel of the Court of Appeals concluded that the trial court had erred in its order. DSS, in conjunction with the child's Guardian ad Litem, then filed an appeal of right, based on the dissent, with this Court. Other facts and circumstances necessary for the discussion of the issues raised by the parties will be provided as needed.

The sole issue on appeal to this Court is whether the evidence presented at trial was sufficient to support the trial court's conclusion that Ms. Cole's parental rights with regard to her daughter, Kristina, should be terminated. In its order, the trial court determined that Ms. Cole had failed to satisfy the State's statutory requirements for maintaining ties with her child. More specifically, the trial court determined that DSS had presented ample evidence showing that Ms. Cole had failed to make reasonable progress in correcting the adverse conditions that led to Kristina's removal from the home. We disagree, for the reasons outlined below, and thus affirm the majority holding from the Court of Appeals.

At the time DSS originally petitioned the trial court for custody of the child, in August of 1997, the relevant portion of the controlling statute provided:

The court may terminate the parental rights upon a finding of one or more of the following:

....

(3) The parent has willfully left the child in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made within 12 months in correcting those conditions which led to the removal of the child.

N.C.G.S. § 7A-289.32 (1998)(repealed effective 1 July 1999 and recodified in N.C.G.S. ch. 7B, art. 11).

The burden is on the petitioner, in this case, DSS, to prove the facts justifying the termination of parental rights, see In re Nolen, 117 N.C.App. 693, 453 S.E.2d 220 (1995), and the trial court's findings with regard to such facts must be based on clear, cogent and convincing evidence, In re Oghenekevebe, 123 N.C.App. 434, 473 S.E.2d 393 (1996). Thus, in order to prevail in a termination of parental rights proceeding held pursuant to N.C.G.S. § 7A-289.32(3a), the petitioner must: (1) allege and prove all facts and circumstances supporting the termination of the parent's rights; and (2) demonstrate that all proven facts and circumstances amount to clear, cogent, and convincing evidence that the termination of such rights is warranted.

In the instant case, there are numerous undisputed facts and circumstances showing that Ms. Cole willfully left the child in foster care or in placement outside the home for more than twelve months. DSS was originally granted custody of Kristina in August of 1997, and the child remained in foster care until December of 1998, when she was placed in the care of Mr. and Mrs. Sellers. At the time of the termination hearing, which began in October of 1999, Kristina was still living with the couple. Thus, for a span of over two years, the child was living either in foster care or with Mr. and Mrs. Sellers. During this period, Ms. Cole went to live with her mother in Maryland, where she participated in a substance abuse program until June of 1998. Ms. Cole was still residing with her mother at the time of the termination proceeding. During the interim, she had procured a nursing position at a local hospital and visited her daughter only sporadically. No evidence was presented that Ms. Cole had at any time during the two-year period sought to permanently reunite herself with Kristina. As a result, in our view, DSS presented clear, cogent, and convincing facts and circumstances evidencing that Ms. Cole had willfully left the child in foster care or in placement outside the home for more than twelve months. We next examine whether there is also ample evidence showing that Ms. Cole did so without making "reasonable progress ... within 12 months[,] in correcting those conditions which led to the removal of [her] child." N.C.G.S. § 7A-289.32(3).

In order to assess whether the evidence at trial demonstrated "reasonable progress" on the part of Ms. Cole, we must first determine what constitutes the twelve-month period within which she was expected to exhibit such progress. The dissenting opinion filed at the Court of Appeals is premised on the assumption that the twelve-month period of demonstrable reasonable progress on the part of the natural parent coincides with the initial twelve-month period of separation from the child. In other words, the parent in question must show reasonable progress in correcting the adverse conditions during the first year of separation, as measured from the time the child was placed outside the home. Thus, in the dissent's view, any evidence of facts and circumstances that transpire outside the designated twelve-month span is not directly relevant to the inquiry into reasonable progress. In re Pierce, 146 N.C.App. 641, 653, 554 S.E.2d 25, 32 (2001) (Hunter, J., dissenting) (concluding that the evidence [of reasonable progress] at issue falls outside of the twelve-month time frame enumerated in the statute); see also id. at 656-57, 554 S.E.2d at 34-35 (Hunter, J., dissenting) (stating that his conclusion is premised solely on evidence confined to the twelve-month period as established in his opinion). However, the dissent also concedes, somewhat paradoxically, that evidence of a parent's reasonable progress following the statutory twelve-month period is admissible and relevant to a degree. Id. at 654, 554 S.E.2d at 33 (Hunter, J., dissenting)("[e]vidence heard or introduced throughout the adjudicatory stage, as well as any additional evidence, may be considered by the court [in a termination of parental rights hearing],")(quoting In re Blackburn, 142 N.C.App. 607, 613, 543 S.E.2d 906, 910) (2001)(first alteration in original). Yet to what degree or extent such evidence may be considered draws no further elaboration. Furthermore, although the dissent acknowledges the existence of evidence of progress or lack thereof in the case sub judice, it lent such evidence no credence at all, ostensibly because it fell outside the statutory period. Thus, two questions emerge: (1) What constitutes the twelve-month period prescribed in the statute ("within 12 months"), and (2) to what extent may a court consider evidence of reasonable progress that occurs outside the twelve-month period?

From a practical standpoint, one may easily define the twelve-month period in question when a petitioner files for termination of parental rights on the 366th day following the removal of the child from the home. Under such circumstances, a child has been in foster care or placed outside the home for "more than 12 months," and the measure for determining whether there has been reasonable progress "within 12 months" in correcting the conditions that led to the child's removal can only be the same twelve-month span. However, the measure for defining the parameters of "within 12 months" is not always so straightforward. For example, how is "within 12 months" to be defined in cases, as here, when a child is removed from the home and DSS does not petition the court for termination of parental rights until two years or more hence? The dissenting opinion at the Court of Appeals interprets the statute to mean "within twelve months of the child's placement outside the home or in foster care." Id. at 653, 554 S.E.2d at 32 (Hunter, J., dissenting). However, the cases cited by the dissent in support of its proposition, id. at 653-54, 554 S.E.2d at 32-33, are seemingly more ambiguous than they are...