Montgomery, Matter of, 8211DC596

• Citation: 303 S.E.2d 324,62 N.C.App. 343
• Decision Date: 07 June 1983
• Docket Number: No. 8211DC596,8211DC596
• Parties: In the Matter of D. MONTGOMERY, a minor female child; S. Maxwell, a minor female child; A. Maxwell, a minor female child; and D. Maxwell, a minor male child.
• Court: North Carolina Court of Appeals

Page 324

303 S.E.2d 324

62 N.C.App. 343

In the Matter of D. MONTGOMERY, a minor female child; S. Maxwell, a minor female child; A. Maxwell, a minor female child; and D. Maxwell, a minor male child.

No. 8211DC596.

Court of Appeals of North Carolina.

June 7, 1983.

Woodall, McCormick & Felmet, Edward H. McCormick, Lillington, for petitioner-appellee.

O. Henry Willis, Jr., Dunn, for respondents-appellants.

HILL, Judge.

These petitions to terminate parental rights were brought by the Harnett County Department of Social Services. Guardians ad litem were appointed for each of the minor children and the parents. At the hearing on termination, the judge, from the admissions in the pleadings and the evidence, made findings of fact which he states are based on clear, cogent, and convincing evidence.

Evidence at the hearing in this matter tended to show the following:

Geraldine Montgomery is the mother of the children and David Maxwell is the father. The parents are not married. Each child is in the custody of the Harnett County Department of Social Services. At the time of the termination hearing, the children were 10, 9, 7 and 5 years old.

The children lived with the parents until they were removed by the Harnett County Department of Social Services in September 1980. During the period between 12 October 1979 and 14 August 1980, the family lived in a three room house with a bathroom and running water, but very little furniture. There was one bed in the house and a mattress on the floor. The parents separated in August 1980, but have since resumed living together in the family home.

The father, at the time of the hearing, had been employed as a welder and general handyman on a farm, and earned about $120.00 per week. The mother kept house but had been ill and was suffering from mental problems which caused her to see things and to become upset when she failed to take her medicine. She has had a hysterectomy, but felt as if she was pregnant. Both parents are moderately retarded.

The children are physically healthy and emotionally well-adjusted. The children were fed and clothed by the parents, who also attended to their medical needs. The family home was clean, the mattress on which the children slept was supplied with sheets, blankets and pillows.

Those children of school age had poor school attendance records during the 1979-80 school year and earned unsatisfactory grades. After being placed in the custody of the Department of Social Services their attendance and performance in school showed improvement.

On 5 December 1980, the court adjudged the children neglected and placed them in the custody of the Harnett County Department of Social Services. The neglect case was reviewed on 6 March 1981 and again on 16 October 1981. The parents had not responded to requests by the Department of Social Services to improve the family living quarters. The father, under order of the court to pay $30.00 per week for the support of his children, had paid only $90.00 from 6 March 1981 to 8 January 1982, or three of 45 payments. He lost a considerable amount of money on a failed attempt at hog farming.

While the children were in foster care, the parents attempted to attend every scheduled visit at the Department of Social Services. Failure to attend scheduled visits was due to lack of transportation.

At the time of the termination hearing, some progress had been made. The mother was accepting the help of the Department of Social Services to improve her homemaking skills and was attending counseling sessions for her mental problems. Additional beds had been provided for the children.

Respondent-appellants' several assignments of error ask us to consider, first, whether the findings of fact made by the trial judge are supported by "clear, cogent, and convincing evidence" and, second, whether those findings of fact support the conclusions of law on which the trial judge's order terminating respondent-appellants' parental rights in their children is based.

G.S. 7A-289.32 provides that, upon a finding of one or more of the grounds listed therein, the court shall terminate parental rights. The trial court in this case based its order on the following statutory grounds:

(1) that the children were neglected within the meaning of 7A-278(4) (now 7A-517(21). G.S. 7A-289.32(2).

(2) that the children were in the custody of a county department of social services for the six months preceding the filing of the petition and the parents have refused to pay a reasonable portion of the child care expenses. G.S. 7A-289.32(4).

In the case before us, G.S. 7A-289.32(2) was the sole basis for the trial court's order terminating the parental rights of the mother and G.S. 7A-289.32(2) and (4) were the bases for the termination of the father's parental rights.

The conclusion of neglect with respect to both parents is based on findings which are summarized as follows: (1) poor school attendance and poor scholastic performance; (2) inadequate and crowded living conditions and failure of the parents to improve them; (3) moderate retardation of both parents contributing to an inability to properly care and provide for the children, including sending them to school.

With respect to the mother, the court's findings of fact are summarized as follows:

(1) she believes that someone or something is trying to get inside her; (2) she believes she has been pregnant for 14 months, despite the fact that she has had a hysterectomy; (3) she gets nervous and angry at her children when she forgets to take her prescribed medicine.

With respect to the father, the court found the following (summarized): that he made only three of 45 scheduled payments to the Department of Social Services at the time the petition was filed, despite the fact that he has been gainfully employed during the time.

I. a.

In our consideration of this case, we take note of the due process evolution that has taken place in the area of parental rights. This evolution began with the case of Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Stanley concerned the rights of a father in his illegitimate children by a mother who had since died. The Court's consideration of these rights involved an extensive exploration of the interest of parents in their children generally. The Stanley Court found that interest to be far more important and substantial than " 'liberties which derive merely from shifting economic arrangements.' " Id. at 651, 92 S.Ct. 1208 at 1212, 31 L.Ed.2d 551, quoting Kovacs v. Cooper, 336 U.S. 77 at 95, 69 S.Ct. 448 at 458, 93 L.Ed. 513 (1949) (Frankfurter, J., concurring). The right to conceive and raise one's children was found to be essential and, as such, to warrant deference and protection under the due process clause of the Constitution. Id. A later Supreme Court case, Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), considered the function of the evidentiary standard of proof in relation to due process. The Court there found that due process required the "clear and convincing" standard of proof when the interest was, as with parental rights, particularly important and more substantial than an economic interest. Id. at 424, 99 S.Ct. 1804 at 1808, 60 L.Ed.2d 323.

b.

Professor Lee notes that the North Carolina statutes on parental rights termination, which govern the action before us, were rewritten to satisfy the constitutional requirements of Stanley. Lee, N.C. Family Law § 292 (1981). In 1979, the North Carolina Legislature amended G.S. 7A-289.30(e) to require, consistent with Stanley and Addington, that "[a]ll findings of fact be based on clear, cogent and convincing evidence." G.S. 7A-289.30(e) (Cum.Supp.1979). The foresight of the State Legislature was borne out when, in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the United States Supreme Court found the "clear and convincing evidence" standard of proof to be required in proceedings to terminate parental rights.

c.

North Carolina courts have had reference to Santosky in at least two cases reviewed for the sufficiency of evidence under the "clear, cogent, and convincing" standard of proof. In re Moore, 306 N.C. 394, 293 S.E.2d 127 (Carlton, J., dissenting), reh. denied, 306 N.C. 585 (1982), appeal dismissed sub nom. Moore v. Dept. of Social Services, 459 U.S. 1139, 103 S.Ct. 776, 74 L.Ed.2d 897 (1983); In re Allen, 58 N.C.App. 322, 293 S.E.2d 607 (1982). In those cases, the courts affirmed the finding of neglect with little comment on the due process implications of Santosky. But see In re Moore, supra (Carlton, J., dissenting). The matter now before us provides the first opportunity we have had to give full consideration to the Santosky decision and its implications for our trial courts.

II. a.

The United States Supreme Court cases, discussed supra, limit their consideration to matters of procedural due process. However, the procedural protection and deference accorded by Santosky to parental rights in children belie their substantive importance and compel us to emphasize and clarify that importance in the present context. Santosky did not attempt to state specifically what must be shown and what quantum of proof must exist to justify a termination of parental rights. Nevertheless, the Court appeared to endorse an approach that would take into account more than physical or economic factors; an approach that would reflect some consideration by the trial judge of all the circumstances of the parent-child relationship in each individual case. The Court noted that termination proceedings "often required the fact finder to ... decide issues difficult to prove to a level of absolute certainty, such as lack of parental motive, absence of affection between parent and child, and failure of parental foresight and progress." Id. 455 U.S. 745 at 769, 102 S.Ct. 1388 at 1402, 81 L.Ed.2d 599. Santosky implicitly demands serious consideration ...