In re T.D.W.

• Citation: 812 S.E.2d 913 (Table)
• Decision Date: 01 May 2018
• Docket Number: No. COA17-1290,COA17-1290
• Parties: In the MATTER OF: T.D.W., H.M.W., A.R.R.
• Court: Court of Appeal of North Carolina (US)

812 S.E.2d 913 (Table)

In the MATTER OF: T.D.W., H.M.W., A.R.R.

No. COA17-1290

Court of Appeals of North Carolina.

Filed: May 1, 2018

David D. Moore, for petitioner-appellee Cherokee County Department of Social Services.

Battle Winslow, Scott & Wiley, P.A., Rocky Mount, by M. Greg Crumpler, for guardian ad litem.

Mary McCullers Reece, Smithfield, for respondent-appellant father.

Assistant Appellate Defender J. Lee Gilliam, for respondent-appellant mother.

CALABRIA, Judge.

Respondent-father and respondent-mother (collectively "respondents") appeal from orders eliminating reunification from the permanent plan, relieving the Cherokee County Department of Social Services ("DSS") of further efforts toward reunification, and terminating respondents' parental rights as to the minor children "Taylor," "Hannah," and "Alexander."¹ We vacate the orders and remand for further proceedings.

I. Factual and Procedural Background

Respondents are not married but have seven children together. Their first two children were born in 2006 and 2008, entered DSS custody after testing positive for illicit drugs, and were later surrendered by respondents for adoption.

Taylor, Hannah, and Alexander ("the children") are respondents' third, fourth, and fifth children and were born, respectively, in 2009, 2011, and 2014. DSS obtained non-secure custody of the children on 20 January 2015 and filed juvenile petitions alleging they were neglected. The petitions described the children as filthy and living in squalid conditions without heat in the home and accused respondents of attempting to conceal their living arrangements from DSS. DSS further alleged that Taylor had not been to school since before the Christmas holiday and had disclosed to the social worker that respondent-father hit her with his fist "when she got in trouble." During an interview with the social worker, respondent-mother acknowledged she had used methamphetamine in respondent-father's presence that day; that the children's paternal grandmother, Ms. W., had allowed respondent-mother to watch the children despite knowing that she had used methamphetamine; that she had left the children with Ms. W. for four days the last time she used methamphetamine; and that Taylor was sick and had not been to the doctor. Respondent-father denied knowledge of respondent-mother's drug use and denied using illegal drugs himself.

DSS filed amended petitions on 17 February 2015 seeking additional adjudications of abuse as to Taylor and Hannah. After repeating the original allegations, the petitions reported two disclosures by five-year-old Taylor to her foster parents. First, Taylor pointed out two injuries on Hannah, "a large bruise cover[ing] the top of her foot" and an open wound on her palm, which Taylor said were inflicted by respondent-father. Two days later, Taylor made her second disclosure, recounted by her foster mother as follows:

[Taylor] says "mommy told me not to tell you about the movie". I ask her do you want to tell me about the movie? [S]he says "yes. It's mine and mommy[']s favorite movie. The one where the man takes all his clothes off and the lady takes all her clothes off and then they get married[.]" I ask her what she means and she says "they get on top of each other and do stuff[.]" I said ok thank you for telling me .... She then asks me "want to know why I watch that movie" I say yes, tell me. She then says "so I can marry daddy's friend. The one who gives him needles[.]" I ask her okay do you know his name? She says "no I don't know him but his house is in the woods and he said I could be a hero if I married him so I did but I didn't want to. It didn't hurt so bad because I am strong[.]" ...

According to the foster mother, Taylor subsequently "reported incidents of specific sex acts with another adult male involving [her] putting her mouth on his ‘goober’ and his ‘goober’ in her (bad place) as well as his mouth o[n] her ‘woohoo’ un[til] it felt good so she ‘marries' him again and again."

Based on these statements, Taylor and Hannah were referred to Bethany Stalcup for forensic evaluations. At Ms. Stalcup's recommendation, DSS moved the trial court to suspend respondents' visitation with the children pending completion of their evaluations. The court suspended respondent-father's visitation with the two girls on 12 February 2015. By consent order signed 23 April 2015, respondent-father was granted one hour per week of supervised visitation with the children.

On 11 May 2015, respondent-father and DSS signed a "Stipulated Memorandum of Judgment" ("Stipulated Memorandum") purporting to "consent to the [children] being adjudicated neglected as they lived in an environment injurious to [sic] their welfare and that there was improper supervision in regards to the minor children." At the time the Stipulated Memorandum was executed, respondent-mother was hospitalized pursuant to an involuntary commitment. Neither she nor her counsel signed the document; nor did the children's guardian ad litem . The following day, 12 May 2015,² the trial court entered a "Stipulated Order Adjudication Hearing" ("Adjudication Order") adjudicating the children neglected juveniles based on "the stipulations and agreements [of] the parties" as set forth in the Stipulated Memorandum. With regard to the children's status as neglected, the Adjudication Order states only as follows: "The juveniles and each of them, are hereby adjudicated to be neglected as defined by [ N.C. Gen. Stat. § 7B-101(15) (2017) ] because they lived in an environment injurious to their welfare and because they did not receive proper care or supervision from their mother and/or father."

We note the adjudication procedure employed by the trial court does not comply with the statutory requirements of a consent adjudication order, in that neither respondent-mother nor her counsel were present when consent was given, see N.C. Gen. Stat. § 7B-801(b1)(1) (2017), and the court did not "make [ ] sufficient findings of fact" to support the adjudication of neglect, N.C. Gen. Stat. § 7B-801(b1)(3) (2017).³ See In re A.B. , ––– N.C. App. ––––, ––––, 799 S.E.2d 445, 450-51 (2017) (explaining that "ultimate findings must arise ‘by processes of logical reasoning from the evidentiary facts' found by the court" (quoting In re Anderson , 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002) ) ). However, as neither respondent appealed from the Adjudication Order, it is not before this Court for review. Cf. In re D.R.F. , 204 N.C. App. 138, 141, 693 S.E.2d 235, 238 ("declin[ing] to review an adjudication order from which respondent-mother had failed to appeal"), disc. review denied , 364 N.C. 616, 705 S.E.2d 358 (2010).

The parties and their counsel signed a "Memorandum of Judgment" on 18 June 2015 reflecting their "stipulated agreement" as to disposition. Pursuant to this document, the trial court entered a "Consent Order Dispositional Hearing" ("Disposition Order") on 29 June 2015 continuing the children in DSS custody, awarding respondents one hour of weekly supervised visitation with the children at the Family Resource Center, and directing respondents to cooperate with DSS "in addressing their respective case plans' activities and goals." The Disposition Order lacked findings of fact but incorporated by reference the DSS summary and report of the guardian ad litem dated 18 June 2015, "except for portions which are mutually agreed by all parties to be excluded, if any." Inter alia , these documents stated that both respondents tested positive for methamphetamine at a drug screen on 29 April 2015; that, during her forensic evaluation, Taylor disclosed "sexual abuse by [respondent-]father and another man abetted by [respondent-]mother"; and that Taylor and Hannah were experiencing "extreme PTSD triggered by visits."⁴

In February 2016, respondent-mother gave birth to a sixth child, "Haley," who entered DSS custody on 13 February 2016 upon respondents' arrest on criminal charges related to the alleged sexual abuse of Taylor. Respondents were released on bond in April 2016, and Haley was adjudicated neglected on 3 August 2016. See In re H.W. , ––– N.C. App. ––––, 809 S.E.2d 925 (2018) (unpublished) (affirming Haley's adjudication as neglected but reversing the trial court's "consent dispositional order" and remanding for entry of a new order "properly supported by sufficient findings of fact").

Consistent with the procedures used at the initial adjudication and disposition, the trial court entered a series of review and permanency planning orders based on memoranda signed by...