Opinion
No. COA11–1495.
2012-05-1
In the Matter of K.B.G.
Hal G. Harrison, for petitioner-appellee, Mitchell County Department of Social Services. Appellate Defender Staples Hughes, by Assistant Appellate Defender J. Lee Gilliam, for respondent-appellant-mother.
Appeal by respondent-father from order entered 16 August 2011 by Judge Alexander Lyerly in District Court, Mitchell County. Heard in the Court of Appeals 9 April 2012. Hal G. Harrison, for petitioner-appellee, Mitchell County Department of Social Services. Appellate Defender Staples Hughes, by Assistant Appellate Defender J. Lee Gilliam, for respondent-appellant-mother.
Rice Law, PLLC, by Mark Spencer Williams, for respondent-appellant-father.
Pamela Newell, for guardian ad litem.
STROUD, Judge.
Respondent-mother and respondent-father appeal from an order terminating their parental rights to their daughter, Peggy.
For the reasons stated below, we reverse and remand.
A pseudonym will be used to protect the identity of the minor.
I. Background
On 2 July 2009, the Mitchell County Department of Social Services (“DSS”) filed a juvenile petition alleging that Peggy was a neglected and dependent juvenile; the petition alleged that Peggy lived in an environment injurious to her welfare due to domestic violence in her presence. Peggy was taken into DSS custody. On 20 August 2009, the trial court adjudicated Peggy neglected and dependent. On 17 December 2010, DSS filed a motion to terminate respondents' parental rights to Peggy, alleging neglect. In an order entered 16 August 2011, the trial court terminated respondents' parental rights on the ground of neglect. Respondents appealed.
II. Standard of Review
The standard of 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 turn, support the conclusions of law. Findings of fact supported by competent evidence are binding on appeal even though there may be evidence to the contrary. However, the trial court's conclusions of law are fully reviewable de novo by the appellate court.
In re D.T.L., ––– N.C.App. ––––, ––––, 722 S.E.2d 516, 517 (2012) (citations, quotation marks, and brackets omitted).
III. Independent Determination
Respondents first argue that the trial court failed to make an independent determination of the facts. Our juvenile code mandates that “[t]he court shall take evidence, find the facts, and shall adjudicate the existence or nonexistence of any of the circumstances set forth in G.S. 7B–1111 which authorize the termination of parental rights of the respondent.” N.C. Gen.Stat. § 7B–1109(e) (2009). “The key to a valid termination of parental rights on neglect grounds where a prior adjudication of neglect is considered is that the court must make an independent determination of whether neglect authorizing the termination of parental rights existed at the time of the hearing.” In re A.M., J.M., 192 N.C.App. 538, 541–42, 665 S.E.2d 534, 536 (2008) (quotation marks omitted).
A. Reading Documents
Respondents contend that reading documents aloud from the witness stand does not satisfy the requirement that the petitioner present oral testimony. In A.M., this Court determined that the trial court failed to make an independent determination of whether neglect authorizing the termination of parental rights existed because DSS did not provide any oral testimony at the hearing and the trial court relied solely on written reports, prior court orders, and the attorneys' oral arguments in rendering its decision. Id. at 541–42, 665 S.E.2d at 536.
Respondents here concede that DSS's witness, a social worker, provided oral testimony at the hearing to terminate respondents' parental rights, but respondents contend that the social worker merely read documents aloud from the witness stand and therefore petitioner failed to prove its case by offering oral testimony from a sworn witness. We disagree and find the instant case distinguishable from A.M. See id. at 542, 665 S.E.2d at 536. Unlike A.M., DSS did provide live testimony from a sworn witness. See id. While the majority of the social worker's testimony may have been based on reading from various documents, the social worker expanded on the information contained in the documents; petitioner asked questions outside the scope of the documents; the social worker offered contemplative responses; and the social worker was cross-examined. While the social worker's independent testimony may not have been extensive, it need not be in order to satisfy the standard articulated in A.M. See id. at 542, 665 S.E.2d at 536 (“[T]his opinion should not be construed as requiring extensive oral testimony.”). Accordingly, this argument is overruled.
B. Recitation of Allegations in Motion and Testimony
Respondents also argue that merely quoting allegations in the motion to terminate parental rights and testimony is not an exercise of independent determination on the part of the court. In re Anderson provides,
Rule 52(a) requires three separate and distinct acts by the trial court: (1) find the facts specially; (2) state separately the conclusions of law resulting from the facts so found; and (3) direct the entry of the appropriate judgment. Thus, the trial court's factual findings must be more than a recitation of allegations. They must be the specific ultimate facts sufficient for the appellate court to determine that the judgment is adequately supported by competent evidence. Ultimate facts are the final resulting effect reached by processes of logical reasoning from the evidentiary facts.
In summary, while Rule 52(a) does not require a recitation of the evidentiary and subsidiary facts required to prove the ultimate facts, it does require specific findings of the ultimate facts established by the evidence, admissions and stipulations which are determinative of the questions involved in the action and essential to support the conclusions of law reached.
151 N.C.App. 94, 96–97, 564 S.E.2d 599, 601–02 (2002) (citations, quotation marks, and ellipses omitted).
In the instant case, the trial court made twelve findings of fact. With the exception of the last four findings of fact, none of which address neglect, the findings of fact are nearly verbatim recitations of the allegations contained in DSS's motion to terminate respondents' parental rights. The most problematic finding of fact is 4(a)(1)-(10) which is the only finding of fact establishing neglect as a ground for termination; with the exception of a few typographical errors and a few omissions, finding of fact 4(a)(1)-(10) tracks the language of DSS's motion to terminate respondents' parental rights verbatim. Accordingly, finding of fact 4(a)(1)-(10) does not demonstrate that the trial court made specific, ultimate findings of fact establishing that Peggy was a neglected juvenile. See id. Thus, we reverse the trial court's order and remand for appropriate findings of fact consistent with this opinion and conclusions of law supported by those findings of fact. See In re O.W., 164 N.C.App. 699, 704, 596 S.E.2d 851, 854 (2004); see also In re D.T.L., ––– N.C.App. at ––––, 722 S.E.2d at 517.
C. Findings of Fact Regarding Domestic Violence
In addition to his challenge to the majority of the findings of fact as a mere recitation of the petition's allegations and testimony, respondent-father also argues that the evidence does not support numerous sub-findings under finding of fact 4 regarding his history of domestic violence. While we will not address each challenged sub-finding separately, we do note the social worker provided testimony regarding some of the challenged sub-findings; although some of this testimony was presented by the social worker in the form of reading documents, we have already determined that the social worker's testimony was adequate. To the extent that the trial court failed to make an independent determination regarding the challenged findings of fact, we have already stated we are reversing the order and remanding for appropriate findings of fact.
IV. Other Issues
We further note that respondents argue that the trial court's findings of fact were erroneous in that they were “merely copied from a permanency planning order” which requires a different standard of proof than the termination order; the findings of fact were not sufficient to support a finding of neglect as a grounds for termination; the trial court failed to make findings of fact regarding respondents' fitness as parents; the trial court abused its discretion in concluding that termination was in Peggy's best interests; and the trial court failed to make a finding of fact regarding the bond between respondent-mother and Peggy. We need not address these issues because even if respondents are correct, the final result will be the same, as we have already determined that we must reverse the order and remand for proper findings of fact which support the conclusions of law. However, we reiterate that the trial court must make an “independent determination” of the facts based upon the evidence presented; it must independently determine whether such evidence is clear, cogent, and convincing evidence which supports a ground for terminating respondents' parental rights; and it must follow the mandates of N.C. Gen.Stat. § 7B–1110(a) in determining what is in Peggy's best interests. SeeN.C. Gen.Stat. § 7B–1110(a); D.T.L., ––– N.C.App. at ––––, 722 S.E.2d at 517;Anderson, 151 N.C.App. at 96–97, 564 S .E.2d at 601–02. Thus, on remand, the trial court should consider all of these issues when making its findings of fact and conclusions of law.
V. Conclusion
For the foregoing reasons, we reverse the order terminating respondents' parental rights and remand for proper findings of fact and conclusions of law which are supported by those findings of fact.
REVERSED and REMANDED. Judges HUNTER, Robert C. and ERVIN concur.
Report per Rule 30(e).