In re Pierce, COA00-1140.

• Decision Date: 06 November 2001
• Docket Number: No. COA00-1140.,COA00-1140.
• Citation: 146 NC App. 641,554 S.E.2d 25
• Court: North Carolina Court of Appeals
• Parties: In the Matter of Kristina Taylor Lindsey PIERCE.

554 S.E.2d 25

146 NC App. 641

In the Matter of Kristina Taylor Lindsey PIERCE.

No. COA00-1140.

Court of Appeals of North Carolina.

November 6, 2001.

Julia Talbutt, Wilmington, for petitioner-appellee.

R. Clarke Speaks, Wilmington, for respondent-appellant.

Regina Floyd Davis, Wilmington, for the Guardian ad Litem.

HUDSON, Judge.

Dawn Allison Weitner Cole (respondent), the mother of Kristina Taylor Lindsey Pierce (the child), appeals from the trial court's order terminating her parental rights. We reverse.

We begin by providing a synopsis of the uncontroverted evidence presented at the termination hearing. In August of 1996, the New Hanover County Department of Social Services (DSS) first became involved with respondent and her two older children (fathered by Ronald Cole). The child in question was born to respondent and James Pierce (Pierce) on 28 June 1997. At the time of her birth, the child tested positive for cocaine. The child was initially placed in the care of her grandmother Linda Meeks (Pierce's mother) in June of 1997. In July of 1997, Meeks informed DSS that, because of her age, she was unable to provide care for the child. The child was then placed back in the care of respondent and Pierce for two weeks. At that time respondent was participating in a substance abuse treatment program called New Visions. After two weeks, DSS discovered that respondent had tested positive for cocaine on three occasions since the child was born.

In August of 1997, DSS petitioned the court for custody of the child and for custody of respondent's two older children, based upon the suspected substance abuse of respondent, and upon three alleged incidents of domestic violence. The court awarded custody of the child to DSS on 7 August 1997, and the child was placed in foster care. Neither the petition nor the order appears in the record on appeal, so we are unable to discern the precise basis for the order. The court also awarded DSS custody of the two older children, who were placed with their father, Ronald Cole. On 17 October 1997, Pierce was arrested and incarcerated. In October or November of 1997, respondent moved from Wilmington, North Carolina to live with her mother in Maryland. In June of 1998, Pierce was released from prison. The child remained in foster care until 4 December 1998, at which time she was placed with Pierce's first cousin, Wendy Sellers, and her husband Jesse Sellers in Charlotte, North Carolina.

DSS filed a petition on 24 June 1999 to terminate respondent's parental rights to the child. A hearing was conducted over a period of two days on 28 October 1999 and 15 November 1999. At the time of the hearing, the child was two and a half years old and continued to live with Wendy and Jesse Sellers. Following the hearing, the trial court entered an order on 28 December 1999 terminating respondent's parental rights. Respondent appeals from this order, raising three assignments of error.

We first note that the record on appeal as settled and filed by the parties, does not contain a copy of a Notice of Appeal. Ordinarily, a Notice of Appeal must be timely filed in order to confer jurisdiction on this Court, and the Rules of Appellate Procedure require the Notice to be included in the Record on Appeal. See N.C. R.App. Pro. 3(b)(1). However, the Clerk of this Court has received by mail a certified copy of a Notice of Appeal, filed in this case on 23 November 1999. In our discretion and on our own motion, we hereby amend the Record on Appeal, to include the Notice of Appeal. See State v. Morris, 41 N.C.App. 164, 166, 254 S.E.2d 241, 242

(allowing the addition of the Notice of Appeal to the Record on Appeal), cert. denied, 297 N.C. 616, 267 S.E.2d 657 (1979).

In her first and second assignments of error, respondent argues that (1) the trial court committed reversible error by failing to address whether DSS had made diligent efforts to strengthen family ties, and that (2) the record was insufficient to support a finding by clear, cogent, and convincing evidence, that DSS had made such efforts. Respondent contends that, pursuant to the holding in In re Harris, 87 N.C.App. 179, 360 S.E.2d 485 (1987), the petitioner must prove the absence of a positive response to agency efforts, which, in turn, requires DSS to prove that it made diligent efforts to encourage respondent to strengthen her parental relationship in the first place.

However, respondent's argument, and the requirements addressed in Harris, are based upon a statutory provision that was no longer applicable at the time the petition to terminate respondent's parental rights was filed. In Harris, the applicable statute provided that a court could terminate the parental rights upon a finding that:

(3) The parent has willfully left the child in foster care 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 or without showing positive response within 12 months to the diligent efforts of a county Department of Social Services ... to encourage the parent to strengthen the parental relationship to the child....

N.C. Gen.Stat. § 7A-289.32(3) (1995) (emphasis added). However, subdivision (3) was amended in 1997, see 1997 N.C. Sess. Laws ch. 390, §§ 1 and 2, and the amended version became applicable to all actions commenced on or after 1 October 1997. At the time the petition was filed in the present case, on 24 June 1999, subdivision (3) of the statute provided that the court may terminate the parental rights upon a finding that:

(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. Gen.Stat. § 7A-289.32(3) (Cum.Supp. 1998). Thus, at the time the petition was filed in this case, subdivision (3) of the statute no longer included the italicized language quoted above regarding a parent's failure to show positive response to the diligent efforts of DSS. Respondent's first two assignments of error are, therefore, without merit.

Respondent's third assignment of error states: "The evidence at trial was insufficient to support the court[`]s finding that Respondent-Appellant had failed to make substantial progress." We first note that the trial court did not expressly find that respondent has "failed to make substantial progress." However, in our discretion, pursuant to N.C. R.App. P. 2, we deem respondent's assignment of error sufficient to challenge findings numbered 8, 10 and 12, and the conclusion that was entered by the trial court, that "the grounds for termination of the Respondent's parental rights have been established by clear, cogent and convincing evidence."

A proceeding for termination of parental rights involves two stages. At the adjudication stage, the petitioner has the burden of proving by clear, cogent, and convincing evidence that one or more of the grounds warranting termination, as set forth in N.C.G.S. § 7A-289.32, exist. If one or more of the specific grounds listed in the statute is established, then the court moves to the disposition stage to determine whether it is in the best interests of the child to terminate the parental rights. See N.C. Gen. Stat. §§ 7A-289.30(e) and 7A-289.31 (1995); In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984). Here, because we hold that several of the findings are not supported by the evidence, and that the remaining findings do not support the conclusion that grounds for termination have been established, we do not reach any discussion of the disposition stage.

The petition filed by DSS alleges that termination of respondent's parental rights is warranted pursuant to both subdivision (2) and subdivision (3) of N.C.G.S. § 7A-289.32. The pertinent portion of this statute provides:

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

....

(2) The parent has ... neglected the child. The child shall be deemed to be ... neglected if the court finds the child to be... a neglected child within the meaning of G.S. 7A-517(21).

(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. Although the petition sets forth these two alternative grounds for termination, the trial court's order does not specify which of these two grounds it relied upon in terminating respondent's parental rights. As noted above, the conclusion of law regarding the grounds for termination states only that "the grounds for termination of the Respondent's parental rights have been established by clear, cogent and convincing evidence."

Upon a careful examination of the order, we believe the trial court intended to hold only that the evidence satisfied the grounds set forth in subdivision (3) of N.C.G.S. § 7A-289.32 (a failure to show "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"). Our interpretation of the order is supported by the fact that all three parties submitting briefs to this Court (petitioner, respondent, and the Guardian ad Litem) have similarly interpreted the trial court's order as a termination of parental rights based only upon subdivision (3) of the statute. However, in the interest of addressing all possible bases for the trial court's order, we have reviewed whether the evidence supports the conclusion that the grounds set forth...