In The Matter Of: A.S.R
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA12-334 NORTH CAROLINA COURT OF APPEALS Filed: 4 September 2012 IN THE MATTER OF: A.S.R. Greene County No. 10 JT 28 Appeal by respondent father from order entered 20 December 2011 by Judge R. Les Turner in Greene County District Court. Heard in the Court of Appeals 20 August 2012. Baddour, Parker & Hine, P.C., by James W. Spicer III, for petitioner-appellee Greene County Department of Social Services. Pamela Newell for the guardian ad litem. Windy H. Rose for respondent-appellant father. BRYANT, Judge. Where the trial court s findings are insufficient to support a conclusion that respondent father neglected his minor child within the meaning of N.C. Gen. Stat. § 7B-101(15), we reverse the order of the trial court. Facts and Procedural History -2The record shows that on 20 July 2010, the Greene County Department of Social Services ( DSS ) took non-secure custody of the Alice1, juvenile, shortly after her birth, petition alleging the juvenile was neglected. the trial court custody order. entered an order, and filed a On 23 July 2010, dismissing the non-secure That same day, DSS filed an amended juvenile petition alleging that Alice was a neglected juvenile. The trial court entered a new non-secure custody order and continued non-secured custody on 30 July, 16 August, and 22 September 2010. Alice was adjudicated neglected by order entered 15 November 2010, and an amended order entered 14 March 2011. By order entered 15 April 2011, the trial court set the permanent plan for Alice as adoption, and relieved DSS of any further obligations to reunify Alice with her parents. DSS filed a petition respondent father to terminate the That same day, parental rights and Alice s mother based on neglect. of The trial court held separate hearings to terminate the parental rights of the mother and respondent 1 father, and entered its A pseudonym has been used throughout to protect the identity of the juvenile. -3order terminating December 2011. respondent father s parental rights on 20 arguments on Respondent father appeals.2 _________________________ Respondent appeal: (I) father DSS s advances petition the did following not contain sufficient allegations to put respondent father on notice as to the acts, omissions or conditions at issue as grounds for the termination of his parental rights; (II) the trial court failed to articulate the grounds for termination of respondent father s parental rights in its order; and (III) the trial court failed to address the probability of repetition of neglect if respondent father was given custody of Alice. I We petition first to address terminate respondent his father s parental rights argument did not that the contain sufficient allegations to put respondent father on notice as to the acts, omissions or conditions at issue as grounds for the termination of his parental rights. However, respondent father did not raise this issue in a motion filed before the trial court pursuant to Rule 12(b)(6), and has thus failed to preserve the issue for appeal. 2 In re H.L.A.D., 184 N.C. App. 381, 392, The parental rights of the juvenile s mother have also been terminated, but she is not a party to this appeal. -4646 S.E.2d 425, 433-34 (2007), aff d per curiam, 362 N.C. 170, 655 S.E.2d 712 (2008) ( The Rules of Civil Procedure apply to proceedings for termination of parental rights[,] In re McKinney, 158 N.C. App. 441, 444, 581 S.E.2d 793, 795 (2003), and a Rule 12(b)(6) motion may not be made for the first time on appeal. ) II Next, respondent father argues the trial court erred in terminating his parental specifically articulate rights the because grounds for it failed termination. to We disagree. Section 7B-1111(a) of the North Carolina General Statutes sets out finding the of any grounds one of for the terminating separately sufficient to support a termination. parental rights. enumerated grounds A is In re A.J.M.P., 205 N.C. App. 144, 148, 695 S.E.2d 156, 158-59 (2010) (citation omitted). In its order terminating respondent s parental rights, the trial court made the following finding of fact: 37. That the respondent father has neglected the juvenile in that he has not provided a place for the juvenile to live, has not followed through with the orders of the Court to see if there was a possibility of the juvenile being placed with the respondent father. -5The court then concluded: 2. That the grounds exist to terminate the parental rights of the respondent father . . . with respect to the juvenile, [Alice], as set out above. We emphasize that the better practice is for the trial court to specifically articulate which exist to terminate parental rights. trial court s terminating order respondent sufficiently father s grounds it concludes Nonetheless, we hold the establishes parental rights that it is based on the ground of neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (2011) ( The parent has abused or neglected the juvenile. The juvenile shall be deemed to be abused or neglected if the court finds the juvenile to be an abused juvenile within the meaning of G.S. 7B-101 or a neglected juvenile within the meaning of G.S. 7B-101. ). Respondent father s argument is overruled. III Respondent father lastly argues the trial court erred in terminating his parental rights based on neglect because it did not address the probability of repetition of neglect if A.S.R. was placed in his custody. We agree. The standard for review in termination of parental rights cases is whether the findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in -6turn, support the conclusions of law. In re Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758 (1984). A trial court may terminate parental rights based on a finding that the parent has neglected the juvenile. N.C. Gen. Stat. § 7B-1111(a)(1) (2011). A neglected juvenile is defined as: A juvenile who does not receive proper care, supervision, or discipline from the juvenile s parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile s welfare; or who has been placed for care or adoption in violation of law. N.C. Gen. Stat. § 7B-101(15) (2011). In deciding whether a child is neglected for purposes of terminating parental rights, the dispositive question is the fitness of the parent to care for the child at the time of the termination proceeding. In re L.O.K., 174 N.C. App. 426, 435, 621 S.E.2d 236, 242 (2005) (citation omitted). Where . . . a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, the trial court must employ a different kind of analysis to determine whether the evidence supports a finding of neglect. This is because requiring the petitioner in such circumstances to show that the child is currently neglected by the parent would make termination of parental rights impossible. -7In re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003) (citations omitted). If the juvenile is removed from the custody of the parent before the termination hearing, [t]he trial court must also consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect. In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984) (citation omitted). After considering evidence of changed conditions, the trial court may then find that grounds for termination exist upon a showing of a history of neglect by the probability of a repetition of neglect. parent and the L.O.K., 174 N.C. App. at 435, 621 S.E.2d at 242 (quoting Shermer, 156 N.C. App. at 286, 576 S.E.2d at 407). Here, although the record establishes previously adjudicated neglected, include finding fact a of to the that trial effect that A.S.R. court in was does not its order. Additionally, the trial court makes no finding regarding the probability of repetition of neglect if respondent father were given custody of A.S.R. its conclusion that Thus, it appears the trial court based grounds exist to terminate respondent father s parental rights solely upon neglect at the time of the hearing. However, the trial court s lone finding on the basis -8for respondent father s neglect states that he has neglected the juvenile in that he has not provided a place for the juvenile to live, [and] has not followed through with the orders of the Court to see if there was a possibility of the juvenile being placed insufficient with to the support respondent a father. conclusion that This finding respondent is father neglected A.S.R. within the meaning of N.C.G.S. § 7B-101(15). Accordingly, we reverse the trial court s order terminating respondent father s parental rights. Reversed. Judges Hunter, Jr., Robert N., and Beasley concur. Report per Rule 30(e).
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