Wheeler, Matter of

• Decision Date: 06 October 1987
• Docket Number: No. 8715DC179,8715DC179
• Citation: 360 S.E.2d 458,87 N.C.App. 189
• Court: North Carolina Court of Appeals
• Parties: In the Matter of James Christopher WHEELER, and John Robert Wheeler, Minor Children.

Page 458

360 S.E.2d 458

87 N.C.App. 189

In the Matter of James Christopher WHEELER, and John Robert Wheeler, Minor Children.

No. 8715DC179.

Court of Appeals of North Carolina.

Oct. 6, 1987.

Lynn A. Andrews and S.C. Kitchen, Graham for petitioner-appellee, Alamance County Department of Social Services.

Jacobs and Livesay by Robert J. Jacobs, Graham, for respondent-appellant, John Gladstone Wheeler.

Messick, Messick, and Messick by Steven H. Messick, Burlington, for Eleanor Ketchum, guardian ad litem for the minor children, appellees.

BECTON, Judge.

Respondent, John Gladstone Wheeler, appeals from an order of the Alamance County District Court terminating his parental rights to his two sons, James Christopher "Jamie" Wheeler, and John Robert "Robbie" Wheeler, on the grounds of abuse. The mother of the children, Debra Crawford Wheeler Trejo, whose parental rights also were terminated on grounds of abandonment and failure to provide support, did not contest the termination of her rights and does not appeal. We affirm the decision of the trial court.

I

John G. Wheeler and Debra C. Wheeler Trejo separated in 1982 and were divorced in September 1983. Following their parents' separation, Jamie and Robbie Wheeler lived with their father in the home of Respondent's mother, Hazel Crawford, and Respondent acquired legal custody of the children.

Jamie and Robbie were initially removed from the custody of Respondent and placed in the temporary custody of the Alamance County Department of Social Services (Petitioner) under a nonsecure custody order entered by District Court Judge J. Kent Washburn on 20 March 1985, when they were ages 11 and 9 respectively. The order was granted pursuant to a juvenile petition filed 20 March 1985 by Petitioner, alleging that the children were abused and neglected within the meaning of N.C.Gen.Stat. Sec. 7A-517(1) and (21). Following a 29 April 1985 hearing before District Court Judge J.B. Allen, Jr., the children were adjudicated to be abused and neglected and were ordered placed in the legal care, custody and control of Petitioner. The court found as a fact that Respondent had, for several years, performed sexual acts, including oral and anal intercourse, with the children, the most recent of which had occurred 19 March 1985.

On 15 April 1985, Respondent was indicted on several criminal charges, including incest, and on 4 June 1985, he pled guilty, pursuant to a plea agreement, to two counts of felonious incest with his children and one count of indecent liberties with another minor child. For these offenses, he was sentenced to three consecutive ten-year active prison terms.

Efforts were made by Petitioner, after acquiring custody, to assist and prepare the children's mother to provide a home for the boys, but those efforts were unsuccessful. On 17 March 1986 Petitioner filed a petition to terminate the parental rights of both parents, attaching and incorporating in its petition a copy of the 29 April 1985 adjudication of abuse and neglect. Respondent filed an answer, and motions to dismiss and to strike all references to the incorporated order, challenging Petitioner's authority to file the petition and denying all material allegations in the petition.

A preliminary hearing to determine the issues raised by the petition and response was held 7 July 1986, following which Judge Allen entered an order concluding that Petitioner was authorized, pursuant to N.C.Gen.Stat. Sec. 7A-289.24(3), to petition for termination of parental rights, and that the parties were estopped from relitigating the prior abuse and neglect adjudications by virtue of the doctrine of res judicata or collateral estoppel. The court limited the issues for the termination hearing to circumstances existing at the time of the hearing and the best interests of the children.

Hearing on the petition to terminate parental rights was held on 28 July, 4 August, and 25 August 1986 before Judge J. Kent Washburn. Witnesses for the Petitioner included Bill Painter, Director of Grandfather Home for Children in Linville, North Carolina; Nancy Dunham, Social Worker II with Alamance County Department of Social Services; Debra Trejo, mother of the minor children; Dr. Mark Everson, the pediatric psychologist who initially evaluated the children for possible sexual abuse; and the children, Jamie and Robbie Wheeler. The sole witness for Respondent was his mother, Hazel Crawford, who testified that she would like for the children to live with her. Eleanor Ketcham, the court appointed guardian ad litem, testified on behalf of the children that it was in their best interests for parental rights to be terminated.

The court made findings of fact and concluded that grounds for termination of Respondent's rights existed pursuant to N.C.Gen.Stat. Sec. 7A-289.32(2) and that it was in the best interests of the children that his rights be terminated. The findings showed, in part, that since the removal of the children from Respondent's custody, Jamie has been placed with relatives, in two foster homes, and, finally, in the adoption preparation program at Grandfather Home for Children in Linville, North Carolina. Robbie has remained in foster care following a short placement with relatives. Both children have been receiving therapy for significant emotional and behavioral problems.

The Court also found that Respondent will not be eligible for parole before the children reach majority, and that "there is no reasonable hope that the family within a reasonable period of time will be able to provide for the emotional or physical welfare of these minor children."

II

Respondent brings forward and argues separately on appeal thirty-nine assignments of error. Although we have carefully considered each of them, we limit our discussion to the most significant arguments.

A

Respondent's first and primary contention is that the trial court erred by denying his motion to dismiss and by ruling that the adjudication and dispositional order of 29 April 1985 had a binding res judicata or collateral estoppel effect in the termination proceeding. Specifically, he maintains that, because the order adjudging his children abused and neglected failed to state affirmatively that the allegations of abuse and neglect in the juvenile petition had been proven "by clear and convincing evidence" as required by N.C.Gen.Stat. Secs. 7A-635 and -637, the order was invalid and could neither serve as Petitioner's G.S. 7A-289.24(3) authority to file the petition nor bind the Court in the termination proceeding on the issue of abuse.

This Court has held, based upon the mandate of N.C.Gen.Stat. Secs. 7A-635 and -637, that a trial court's failure to state the standard of proof used in making a determination of delinquency constitutes reversible error on appeal. See In re Walker, 83 N.C.App. 46, 348 S.E.2d 823 (1986); In re Johnson, 76 N.C.App. 159, 331 S.E.2d 756 (1985); In re Wade, 67 N.C.App. 708, 313 S.E.2d 862 (1984). Because the same statutes require trial judges to recite the standard of proof applied in a juvenile abuse or neglect proceeding, we agree with Respondent that the Court's failure to do so in this case was error.

However, the proper avenues for Respondent to attack the adjudication of neglect and abuse and the dispositional order granting custody to Petitioner were 1) appeal, pursuant to N.C.Gen.Stat. Sec. 7A-666, or 2) a motion for relief pursuant to N.C.Gen.Stat. Sec. 1A-1, Rule 60. Although collateral attack in an independent or subsequent action is a permissible means of seeking relief from a judgment or order which is void on its face for lack of jurisdiction, see Stroupe v. Stroupe, 301 N.C. 656, 273 S.E.2d 434 (1981); Hassell v. Wilson, 301 N.C. 307, 272 S.E.2d 77 (1980), the error in this case was not a jurisdictional error subject to that kind of challenge. Because no appeal was taken or other relief sought from the 29 April 1985 order, it remained a valid final order which was binding in the later proceeding on the facts regarding abuse and neglect which were found to exist at the time it was entered.

The doctrine of collateral estoppel operates to preclude parties "from retrying fully litigated issues that were decided in any prior determination and were necessary to the prior determination." King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973). In this case, the issue of Respondent's sexual abuse of his children had been fully litigated and was necessary to the adjudication of abuse. Moreover, "[t]o be valid, a judgment need not be free from error. Normally, no matter how erroneous a final valid judgment may be on either the facts or the law, it has binding res judicata and collateral estoppel effect in all courts, Federal and State, on the parties and their privies." King v. Grindstaff at 360, 200 S.E.2d at 808.

In In re Wilkerson, 57 N.C.App. 63, 291 S.E.2d 182 (1982), this Court held that the trial court had properly applied the doctrine of collateral estoppel in ruling that findings included in a prior adjudication of neglect were binding on the Court in a later hearing on a petition to terminate parental rights. And although our Supreme Court has not specifically resolved this collateral estoppel issue, it concluded in In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984) that a prior adjudication of neglect may be admitted and considered by the trial court in a subsequent proceeding to terminate parental rights on the grounds of neglect, and that the treatment of such an order as binding in the termination proceeding will not prejudice the parents if the hearing is properly conducted.

In the present case, the trial court did not rely solely upon the previous order in a way that would impermissibly predetermine the outcome of the termination hearing. Rather, the judge admitted and considered other evidence concerning the family's circumstances and the psychological condition and well-being of the children which was...