Montgomery, Matter of

Decision Date05 June 1984
Docket NumberNo. 345PA83,345PA83
Citation316 S.E.2d 246,311 N.C. 101
PartiesIn 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.
CourtNorth Carolina Supreme Court

Woodall, McCormick & Felment, P.A. by Edward H. McCormick, Lillington, for petitioner-appellant.

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

Rufus L. Edmisten, Atty. Gen. by David R. Minges, Associate Atty. Gen., and Jane Rankin Thompson, Asst. Atty. Gen., Raleigh, appearing as amicus curiae for the State.

Ruff, Bond, Cobb, Wade & McNair by William H. McNair and Moses Luski, Charlotte, appearing as amicus curiae for Mecklenburg County Dept. of Social Services.

COPELAND, Justice.


The Court of Appeals, in In re Montgomery, 62 N.C.App. 343, 303 S.E.2d 324 (1983), reversed the trial judge's judgment terminating parental rights on the grounds of neglect pursuant to N.C.Gen.Stat. § 7A-289.32(2). That court held that the clear, cogent, and convincing evidence standard of proof requires the party seeking termination of parental rights for neglect to prove not only that the physical and economic needs of the child are not adequately met, but also that the intangible non-economic needs of a child are not adequately met. The petitioner argues that the Court of Appeals committed error by engrafting this new "non-economic" or "non-physical indicia" test onto the requirements for establishing grounds for terminating parental rights. For the following reasons, we agree.

This case involves the interpretation of the Termination of Parental Rights Act, Chapter 7A, Article 24B of the General Statutes, specifically N.C.Gen.Stat. § 7A-289.32 which provides in pertinent part:

Grounds for terminating parental rights. --The court may terminate the parental rights upon a finding of one or more of the following:

(2) The parent has abused or neglected the child. The child shall be deemed to be abused or neglected if the court finds the child to be an abused child within the meaning of G.S. 7A-517(1), or a neglected child within the meaning of G.S. 7A-517(21)....

(4) The child has been placed in the custody of a county department of social services, a licensed child-placing agency, or a child-caring institution, and the parent, for a continuous period of six months next preceding the filing of the petition, has failed to pay a reasonable portion of the cost of care for the child....

(7) That the parent is incapable as a result of mental retardation, mental illness, organic brain syndrome, or any other degenerative mental condition of providing for the proper care and supervision of the child, such that the child is a dependent child within the meaning of G.S. 7A-517(13), and that there is a reasonable probability that such incapability will continue throughout the minority of the child.

The statute referred to in subsection (2) of the above-quoted statute, N.C.Gen.Stat. § 7A-517(21), appears as follows:

(21) Neglected Juvenile. --A juvenile who does not receive proper care, supervision, or discipline from his parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care or other remedial care recognized under State law, or who lives in an environment injurious to his welfare, or who has been placed for care or adoption in violation of law.

In its opinion, the Court of Appeals reasoned that the North Carolina statutory definition of neglect is "sufficiently broad to allow interpretation by the courts ..." Although we agree that the appellate courts, in applying our statutes to the particular case being considered, often must construe these broadly worded statutes, we also acknowledge that our courts are restrained by the bounds of legislative intent. Mazda Motor v. Southwestern Motors, 296 N.C. 357, 250 S.E.2d 250 (1979). However, after our careful reading of the statute, we must conclude that the Court of Appeals, in contravention of our Legislature's intent, erroneously elevated the burden of proof required in proceedings terminating parental rights.

The Court of Appeals, in Montgomery, prefaced its opinion with a brief summarization of the "due process evolution" in the area of parental rights, particularly highlighting the United States Supreme Court cases of Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) and Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Those cases stand for the premise that the parents' right to retain custody of their child and to determine the care and supervision suitable for their child, is a "fundamental liberty interest" which warrants due process protection. Id., at 758-59, 102 S.Ct. at 1396-97, 71 L.Ed.2d at 610. Both Stanley and Santosky, as the Court of Appeals correctly noted, confine their consideration to procedural due process matters. However, the Court of Appeals interpreted Santosky as requiring a petitioner to establish that a child's intangible, non-economic needs were not being fulfilled by his or her parents before said parents' parental rights could be terminated. That court opined the following:

Nevertheless, the [United States Supreme] 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 [United States Supreme] 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. at 769, 102 S.Ct. 1388, 1402, 81 [sic] L.Ed.2d 599. Santosky implicitly demands serious consideration of the unquantifiable attributes of the parent-child relationship that warrant its protected status under the Due Process clause.

Montgomery at 348, 303 S.E.2d at 327.

Certainly neither we nor our learned lawmakers dispute the importance of love, affection and other intangible qualities that exist in the normal familial relationships. In fact the General Assembly has clearly expressed their desire to ensure that children receive that "degree of care which promotes [their] healthy and orderly physical and emotional well-being." N.C.Gen.Stat. § 7A-289.22(1). Section (2) of that statute further articulates that:

(2) It is the further purpose of this Article to recognize the necessity for any child to have a permanent plan of care at the earliest possible age, while at the same time recognizing the need to protect all children from the unnecessary severance of a relationship with biological or legal parents. (Emphasis added.)

The Legislature has properly recognized that in certain situations, where the grounds for termination could be legally established, the best interests of the child, considering the intangibles, indicate that the family unit should not be dissolved.

N.C.Gen.Stat. § 7A-289.31(a) and (b), which governs the disposition stage of a termination proceeding, provide that the trial court may elect not to terminate parental rights if the best interests of the child require such a result:

(a) Should the court determine that any one or more of the conditions authorizing a termination of the parental rights of a parent exist, the court shall issue an order terminating the parental rights of such parent with respect to the child unless the court shall further determine that the best interests of the child require that the parental rights of such parent not be terminated. [Emphasis added.]

(b) Should the court conclude that irrespective of the existence of one or more circumstances authorizing termination of parental rights, the best interests of the child require that such rights should not be terminated, the court shall dismiss the petition, but only after setting forth the facts and conclusions upon which such dismissal is based.

In sum, where there is a reasonable hope that the family unit within a reasonable period of time can reunite and provide for the emotional and physical welfare of the child, the trial court is given discretion not to terminate rights.

Furthermore, with respect to termination proceedings, our statutes provide additional procedures, consistent with due process, to protect the various interests of the parties involved. In every contested case, a guardian ad litem must be appointed to represent the "best interests of the child." See: N.C.Gen.Stat. § 7A-289.29. In cases such as the one at present, a parent has the right to the representation of an appointed guardian ad litem "where it is alleged that a parent's rights should be terminated pursuant to G.S. 7A-289.32(7) ..." N.C.Gen.Stat. § 7A-289.23. Also our statutes provide the parent with appointed counsel during the disposition phase, Id. and N.C.Gen.Stat. § 7A-451(a)(14) and (15), as well as the right to appeal. N.C.Gen.Stat. § 7A-289.34.

We are satisfied that the Termination of Parental Rights statute as drafted provides an appropriate forum to address the "intangible needs" issue, as well as protects a parent's interest in preserving the family. Thus, the Court of Appeals' expansion of the grounds for terminating parental rights was unnecessary and improper.

We must further hold that the Court of Appeals' determination, that due process requires a separate and distinct finding regarding the adequate fulfillment of a child's intangible and non-economic needs, is not justified. This Court has not found it constitutionally necessary to develop such an additional requirement to justify termination for neglect. In our case of In re Moore, 306 N.C. 394, 293 S.E.2d 127, reh. denied, 306 N.C. 565 (1982); appeal dismissed sub nom. Moore v. Dept. of Social Services, 459 U.S. 1139, 103 S.Ct. 776, 74 L.Ed.2d 987 (1983), decided...

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