Moore, Matter of

• Decision Date: 13 July 1982
• Docket Number: No. 5PA82,5PA82
• Court: North Carolina Supreme Court
• Parties: In the Matter of Connie Marie MOORE and Donnie Lee Moore, Minors (appealed by Lillie Ruth Moore).

Page 127

293 S.E.2d 127

306 N.C. 394

In the Matter of Connie Marie MOORE and Donnie Lee Moore Minors (appealed by Lillie Ruth Moore).

No. 5PA82.

Supreme Court of North Carolina.

July 13, 1982.

Judith G. Behar, Greensboro, for appellant.

Margaret A. Dudley, Deputy County Atty., M. Douglas Berry, Greensboro, for Guilford County Dept. of Social Services-appellee.

BRITT, Justice.

I.

The Court of Appeals properly dismissed respondent's appeal because of her failure to give timely notice of appeal.

The record on appeal reveals that while Judge Yeattes did not enter his formal written order until 25 November 1980, he announced his decision in open court on 25 September 1980 immediately after the hearing. G.S. 1-279(c) and Appellate Rule 3(c) provide that if oral notice of appeal is not given at trial, notice of appeal must be filed and served within 10 days after "entry" of the order or judgment. G.S. 1A-1, Rule 58, provides that "where judgment is rendered in open court, the clerk shall make a notation in his minutes as the judge may direct and such notation shall constitute the entry of judgment for the purposes of these rules. The judge shall approve the form of the judgment and direct its prompt preparation and filing."

It appears that respondent did not give oral notice of appeal at trial but filed and served her notice of appeal on 8 October 1980, 13 days after the "entry" of the order. Nevertheless, since we have allowed Mrs. Moore's petition for a writ of certiorari and have considered the appeal on its merits, the question of validity of the notice of appeal has become moot.

II.

Respondent contends that the trial court erred in denying her motion to dismiss the petition to terminate her parental rights. She argues that the petition does not state a claim for relief for the reason that the "termination statutes" are unconstitutionally vague and do not provide for due process in light of the interests at stake. We find no merit in this contention.

G.S. 7A-289.32 sets forth six separate grounds upon which a termination of parental rights order can be based. Portions of the statute pertinent to the case at hand are as follows:

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

(1) ...

(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. 110-117(1)(a), (b), or (c), or a neglected child within the meaning of G.S. 7A-278(4).

(3) The parent has willfully left the child in foster care for more than two consecutive years without showing to the satisfaction of the court that substantial progress has been made within two years in correcting those conditions which led to the removal of the child for neglect, or without showing positive response within two years to the diligent efforts of a county department of social services, a child-caring institution or licensed child-placing agency to encourage the parent to strengthen the parental relationship to the child or to make and follow through with constructive planning for the future of the child.

(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.

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G.S. 7A-278(4) referred to in subsection (2) of the quoted statute was repealed by Chapter 815 of the 1979 Session Laws. The substance of former G.S. 7A-278(4) now appears as G.S. 7A-517(21) [1981 Replacement] 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.

This court in In Re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981), upheld the constitutionality of subsection (4) quoted above. See also In Re Biggers, Two Minor Children, 50 N.C.App. 332, 274 S.E.2d 236 (1981). We reaffirm our holding in Clark.

On the question of vagueness of a statute, this court in In Re Burrus, 275 N.C. 517, 531, 169 S.E.2d 879 (1969), aff'd, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), an opinion authored by Justice Huskins, said:

It is settled law that a statute may be void for vagueness and uncertainty. "A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." 16 Am.Jur.2d, Constitutional Law § 552; Cramp v. Board of Public Instruction, 368 U.S. 278, 7 L.Ed.2d 285; 82 S.Ct. 275; State v. Hales, 256 N.C. 27, 122 S.E.2d 768. Even so, impossible standards of statutory clarity are not required by the constitution. When the language of a statute provides an adequate warning as to the conduct it condemns and prescribes boundaries sufficiently distinct for judges and juries to interpret and administer it uniformly, constitutional requirements are fully met. United States v. Petrillo, 332 U.S. 1, 91 L.Ed. 1877, 67 S.Ct. 1538.

275 N.C. at 531, 169 S.E.2d 879.

Further, in the case of In Re Biggers, supra, we find:

A statute must be examined in the light of the circumstances in each case, and respondent has the burden of showing that the statute provides inadequate warning as to the conduct it governs or is incapable of uniform judicial administration. State v. Covington, 34 N.C.App. 457, 238 S.E.2d 794, rev. denied, 294 N.C. 184, 241 S.E.2d 519 (1977).

50 N.C.App. at 340, 274 S.E.2d 236.

Applying the standard set forth in Burrus and Biggers, and cases cited therein, we hold that the provisions of G.S. 7A-289.32(2) and (3), and G.S. 7A-278(4) quoted above are not unconstitutionally vague. People of common intelligence need not guess at their meaning and differ as to their application.

With respect to respondent's due process contention, she argues that while she and her husband were provided counsel when the decision to remove the children for neglect was first made in 1974, "the record does not show that they were represented or advised that they could be represented" when they petitioned the court in 1975 to return the children.

We do not reach the question of whether due process requires that counsel be provided indigents when they petition for a return of children. The presumption is in favor of the correctness of the proceedings in the trial court, London v. London, 271 N.C. 568, 157 S.E.2d 90 (1967); Gregory v. Lynch, 271 N.C. 198, 155 S.E.2d 488 (1967), and the burden is on the appellant to show error. Gregory v. Lynch, supra. Respondent has failed to show that she did not have counsel. Furthermore, the record is just as susceptible to interpretation that respondent had counsel as that she did not. Although the court order from the 19 December 1975 hearing did not reflect the presence of counsel for the parents, Richard Gainer testified that the Moore's attorney had the proceedings continued from the 12th to the 19th (R pp 16a, 50).

III.

Respondent states her next contention as follows: "The trial court erred in denying respondent's motion to dismiss at the close of the state's evidence and at the close of all of the evidence when there was clear, cogent and convincing evidence that respondent had made substantial progress in correcting the conditions that had lead to the children's removal for neglect, that she had not failed to pay a reasonable portion of the cost of their care, that petitioner had not diligently encouraged the respondent to strengthen her parental relationship to the children, and that respondent had not wilfully left her children in foster care for more than two years." Her final contention is that the trial court's conclusions of law are erroneous in that they are not supported by clear, cogent and convincing evidence. We find no merit in these contentions.

G.S. 7A-289.30(e) provides, inter alia, that in an adjudicatory hearing on a petition to terminate parental rights the court shall find the facts and "all findings of fact shall be based on clear, cogent, and convincing evidence." It will be noted that the trial court is authorized to terminate parental rights "upon a finding of one or more" of the six grounds listed in G.S. 7A-289.32.

In the case at hand the trial court based its order terminating respondent's rights on three of the grounds set forth in the statute, (2), (3) and (4). The court concluded as a matter of law (a) that respondent had neglected the children; (b) that she had wilfully left the children in foster care for more than two years and substantial progress had not been made to the court's satisfaction in correcting the conditions which lead to the removal of the children; and (c) the children had been placed in the custody of the DSS and respondent had failed for a period of six months to pay a reasonable portion of the costs of their care.

If either of the three grounds aforesaid is supported by findings of fact based on clear, cogent and convincing evidence, the order appealed from should be affirmed. We have set forth above a lengthy summary of the findings of fact and other facts established by the record. Since respondent did not except to any of the findings, they are presumed to be correct and supported by evidence. Nationwide Homes of Raleigh, Inc. v. First Citizens Bank & Trust Co., 267 N.C. 528, 148 S.E.2d 693 (1966); Keeter v. Lake Lure, 264 N.C. 252, 141 S.E.2d 634 (1965). Nevertheless, we have reviewed the evidence and conclude that the...