In re K.R.C. ( 2020 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 389A19
Filed 17 July 2020
IN THE MATTER OF: K.R.C.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 6 May
2019 by Judge Paul A. Hardison in District Court, Pitt County. This matter was
calendared in the Supreme Court on 19 June 2020 and determined without oral
argument pursuant to Rule 30(f) of the North Carolina Rules of Appellate Procedure.
Miller & Audino, LLP, by Jay Anthony Audino, for petitioner-appellant mother.
Matthew D. Wunsche, GAL Appellate Counsel, for appellee Guardian ad Litem.
W. Gregory Duke for respondent-appellee father.
MORGAN, Justice.
Petitioner, the mother of the minor child K.R.C. (Katie)1, appeals from the trial
court’s order denying her petition to terminate the parental rights of respondent,
Katie’s biological father. Because the trial court failed to make sufficient findings of
fact and conclusions of law to allow for meaningful appellate review, we vacate the
trial court’s order and remand for further proceedings.
1 A pseudonym chosen by the parties.
IN RE K.R.C.
Opinion of the Court
Factual Background and Procedural History
Katie was born in April 2014. Petitioner mother and respondent father were
not married to each other, and after Katie’s birth, the child resided with petitioner in
Pitt County. Soon after Katie was born, the District Court, Pitt County, entered a
temporary custody order granting sole custody of Katie to petitioner due to
respondent’s mental health issues—respondent was hospitalized for three days with
suicidal ideations in late January 2014—and his threatening conduct. Petitioner
obtained an ex parte domestic violence protective order (DVPO) against respondent
on 13 June 2014. On 12 July 2014, respondent was charged with assault on a female,
interference with emergency communications, and second-degree trespass after he
went to petitioner’s residence, took petitioner’s telephone from her when she tried to
call 911 for help, and choked petitioner when she refused to allow him to see Katie.
During the summer of 2014, Katie was the subject of a series of child protective
services (CPS) reports received by the Pitt and Beaufort County Departments of
Social Services (DSS). The report received on 16 June 2014 alleged that respondent
was experiencing suicidal thoughts again and had made indirect threats, such as
advising petitioner to take out a life insurance policy on Katie. On 12 July 2014, a
report alleged that petitioner had been contacting respondent and asking to see him,
and that Katie had been severely sunburned during a beach trip with petitioner. It
was further reported on 18 August 2014 that petitioner was unstable and possibly
suffering from post-partum depression, and that petitioner’s stepmother had mental
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health issues. Respondent later acknowledged that he had made the latter two of
these CPS reports.
Due to petitioner’s employment with Pitt County DSS, the CPS reports were
investigated by Lenoir County DSS, which arranged for Beaufort County DSS
(BCDSS) to provide services to the family. On 12 September 2014, petitioner
contacted BCDSS and admitted to having ongoing contact with respondent.
Petitioner acknowledged that she had allowed respondent to spend the night in her
residence with Katie present on at least two occasions, had sexual relations with
respondent while Katie was in the home on two other occasions, and had otherwise
allowed respondent to visit with Katie.
Following these disclosures from petitioner, Katie was placed in kinship care
with the child’s maternal grandparents. Respondent objected to the placement,
however, and threatened to remove Katie from the grandparents’ home. On 15
September 2014, BCDSS obtained nonsecure custody of Katie and filed a juvenile
petition alleging that Katie was a neglected juvenile.
Respondent submitted to a psychological evaluation by Dr. Anne L. Mauldin.
In her report issued in November 2014, Dr. Mauldin noted that respondent was under
a psychiatrist’s care for attention-deficit/hyperactivity disorder (ADHD) and mood
disorder related to his hospitalization. Based on her examination of respondent, Dr.
Mauldin found “a high degree of fit with the diagnostic criteria for ADHD as well as
Cluster B personality disorders, specifically Antisocial personality disorder and
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Borderline personality disorder.” She described these personality disorders as
characterized by “intense, shifting moods and . . . problems with impulse control” as
well as rigid but shifting attitudes about other people and “problems maintaining
relationships.” Because of the negative implications of these diagnoses for parenting,
Dr. Mauldin deemed it “critical that [respondent] . . . be under the care of a
psychiatrist and be in treatment with a skilled psychotherapist . . . who utilizes
Dialectical Behavioral Therapy (DBT.)”
The trial court adjudicated Katie to be a neglected juvenile on 3 December
2014, finding that she lived in an environment injurious to her welfare “in light of the
substantial amount of domestic violence, aggression, and mental issues displayed by
[respondent.]” See N.C.G.S. § 7B-101(15) (2019). Although petitioner “ha[d] not
actively done anything to injure [Katie],” the trial court found that petitioner had
“continued to allow [respondent] to have access to the child in spite of seeking
criminal charges, a [DVPO,] and a temporary custody order to prevent him from
having such access.”
The trial court entered its initial disposition order on 31 December 2014,
maintaining Katie in the legal custody of BCDSS and authorizing her continued
placement with her maternal grandparents. Although BCDSS had developed out-of-
home family services agreements (OHFSA) for both parents, the trial court found as
a fact that respondent had not signed his OHFSA and had “informed BCDSS that he
is not going to complete services in order to work a plan of reunification.” As a result,
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Opinion of the Court
the trial court ceased reunification efforts toward respondent and established a
permanent plan for Katie of reunification with petitioner. To achieve reunification,
petitioner was ordered to comply with the conditions of her OHFSA.
The trial court ordered that respondent comply with the requirements of his
OHFSA, which included anger management treatment and DBT. The trial court also
ordered respondent to abstain from using marijuana and from posting material on
social media about the case. Although respondent was attending supervised
visitations with Katie and behaving appropriately toward his daughter during those
visits, the trial court found that his ongoing hostility and aggression toward BCDSS
staff required the relocation of his visits to the Family Violence Center (FVC) in
Greenville. The trial court granted respondent two hours of biweekly supervised
visitation with Katie but required him to contact the FVC to arrange the visits.
An initial permanency planning hearing was conducted by the trial court on 6
March 2015. That court entered an order on 24 March 2015 awarding petitioner sole
legal and physical custody of Katie in fulfillment of the permanent plan. The trial
court made findings that respondent had not visited Katie since the time that
respondent’s visits were moved to FVC, that respondent had “done nothing to
eliminate the safety risks that led to this juvenile coming into care,” that respondent
was “unfit to raise a minor child or to be in the presence of a minor child
unsupervised,” and that respondent had mental health issues “prevent[ing] him from
appreciating the risks he poses[] to a minor child.” Based upon these findings,
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respondent was ordered by the trial court to have no further visitation with Katie.
The order also forbade petitioner and respondent to have any contact with one
another, whether “direct or indirect.” In its 24 March 2015 order, the trial court
waived further review hearings and relieved the parties and counsel from further
responsibility in the case. The trial court retained jurisdiction in the case, however,
concluding that respondent’s “general noncompliance” and “mental health warrant a
continued need for state intervention and jurisdiction for this minor child.” See
N.C.G.S. § 7B-201(a) (2019).
On 18 August 2017, more than twenty-six months after regaining custody of
Katie, petitioner filed a petition to terminate respondent’s parental rights. Petitioner
alleged the following statutory grounds for termination: (1) neglect; (2) leaving Katie
in a placement outside the home for more than twelve months without making
reasonable progress to correct the conditions that led to her removal; (3) failure to
pay a reasonable portion of the cost of Katie’s care; (4) dependency; and (5)
abandonment. N.C.G.S. § 7B-1111(a)(1)–(3), (6)–(7) (2019). Respondent filed an
answer to the petition denying each of these alleged termination grounds.
The trial court held an adjudicatory hearing on 6 and 9 November 2018. On
the second day of the hearing, petitioner voluntarily dismissed her claim under
N.C.G.S. § 7B-1111(a)(3) (failure to pay a reasonable portion of the cost of the
juvenile’s care), conceding that the application of the ground only arose when a
juvenile is in DSS custody. At the conclusion of the presentation of evidence,
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respondent moved to dismiss petitioner’s remaining claims on the basis of insufficient
evidence. With regard to his alleged failure to make reasonable progress under
N.C.G.S. § 7B-1111(a)(2), respondent argued that this ground for termination was
also inapplicable because Katie was removed from petitioner’s care for only six
months between September 2014 and March 2015 and thus was not in a “placement
outside the home for more than [twelve] months” as required by the governing
statute. N.C.G.S. § 7B-1111(a)(2). After hearing from each party, the trial court took
the matter under advisement, deferring the dispositional hearing pending its ruling
on adjudication.
In a ruling captioned “Termination Order” which was entered on 6 May 2019,
the trial court denied the petition, concluding that “[p]etitioner ha[d] failed her
burden to prove by clear, cogent and convincing evidence that the necessary grounds
exist to terminate the [r]espondent’s parental rights.” Petitioner filed timely notice of
appeal after she was served with the order on 19 June 2019. See N.C.G.S. § 7B-
1001(b) (2019).
Analysis
Petitioner begins with two related arguments which we consider together. She
first challenges the trial court’s conclusion of law that she failed to prove that “the
necessary grounds exist” to support the termination of respondent’s parental rights.
(Emphasis added). Petitioner claims that the pluralization of the term “ground”
illustrates that the trial court mistakenly believed that petitioner was obliged to
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prove multiple “necessary grounds” for termination under N.C.G.S. § 7B-1111(a).
Petitioner also contends that this sole conclusion of law of the trial court fails to
disclose the specific deficiencies in petitioner’s evidence regarding her burden of
proof. In her second argument, petitioner asserts that the trial court failed to make
sufficient findings of fact to support its conclusion regarding the lack of statutory
grounds upon which to terminate respondent’s parental rights.
In addressing the trial court’s use of the term “necessary grounds” in its
conclusion of law, we first recognize that at the adjudicatory stage of a termination
of parental rights proceeding, the petitioner has the burden to prove the existence of
at least one statutory ground for termination by clear, cogent, and convincing
evidence. N.C.G.S. § 7B-1109(f) (2019). It is well-established that proof of any single
statutory ground for termination is sufficient to meet the petitioner’s burden. See,
e.g., In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982). Accordingly, “[a]fter
an adjudication that one or more grounds for terminating a parent’s rights exist,” the
trial court must proceed to disposition and “determine whether terminating the
parent’s rights is in the juvenile’s best interest.” N.C.G.S. § 7B-1110(a) (2019)
(emphasis added).
While this Court agrees with petitioner that proof of multiple grounds for
termination is not necessary for an adjudication under N.C.G.S. § 7B-1109(e), we are
not persuaded that, by itself, the trial court’s use of the phrase “necessary grounds”
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which pluralizes the term “ground” connotes the commission of error by the trial
court.
Among the common meanings of “grounds” is the “[b]asis or justification for
something, as in ‘grounds for divorce.’ ” https://www.yourdictionary.com/grounds (last
visited June 30, 2020).2 In addition, as shown by the following passage from our Rules
of Civil Procedure which are codified in the North Carolina General Statutes, legal
references often use the terms “ground” and “grounds” interchangeably to denote a
single basis or reason:
It is not ground for objection that the information sought
will be inadmissible at the trial if the information sought
appears reasonably calculated to lead to the discovery of
admissible evidence nor is it grounds for objection that the
examining party has knowledge of the information as to
which discovery is sought.
N.C.G.S. § 1A-1, 26(b)(1) (2019) (emphasis added). This same tendency appears in
our case law. Compare In re E.H.P., 372 N.C. 388, 391, 831 S.E.2d 49, 52 (2019) (“At
the adjudication stage, the petitioner bears the burden of proving by clear, cogent,
and convincing evidence that grounds exist for termination pursuant to section 7B-
1111 of the General Statutes.” (emphasis added)), with id. at 395, 831 S.E.2d at 53
(“As previously noted, an adjudication of any single ground in N.C.G.S. § 7B-1111(a)
is sufficient to support a termination of parental rights.” (emphasis added)). Likewise,
2See also https://www.merriam-webster.com (search “DICTIONARY” for “grounds”)
(“4 a: a basis for belief, action, or argument // ground for complaint —often used in plural //
sufficient grounds for divorce”)
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in case citations, the phrase “rev’d on other grounds” may refer to a single alternative
rationale for reversing a lower court’s decision. See THE BLUEBOOK: A UNIFORM
SYSTEM OF CITATION 501 tbl.T.8 (Columbia Law Review Ass’n et al. eds., 20th ed.
2015). In light of this frequent interchangeable usage of the terms “ground” and
“grounds” in legal authorities to refer to a singular basis for a decision, we are
unwilling to conclude, without more than the trial court’s facial reference to “grounds”
in the order here, that the trial court harbored a mistaken belief that multiple
statutory grounds for termination were necessary in order to terminate respondent’s
parental rights.
We do agree, however, with petitioner that the limited findings of fact and the
single conclusion of law included in the trial court’s “Termination Order” do not
permit meaningful appellate review, and therefore they are insufficient to support
the trial court’s decision denying her petition. The pertinent statute governing
adjudications, N.C.G.S. § 7B-1109, provides that the trial 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.G.S. § 7B-1109(e) (2019). In addition to placing the
burden of proof on the petitioner, the statute specifies that “all [adjudicatory] findings
of fact shall be based on clear, cogent, and convincing evidence.” N.C.G.S. § 7B-1109(f)
(2019).
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Here, the trial court concluded that petitioner had failed to prove any of her
alleged grounds for terminating respondent’s parental rights under N.C.G.S. § 7B-
1111(a). In such circumstances, when the court “determine[s] that circumstances
authorizing termination of parental rights do not exist,” the dispositional statute
provides that “the court shall dismiss the petition or deny the motion,[3] making
appropriate findings of fact and conclusions.” N.C.G.S. § 7B-1110(c) (2019) (emphasis
added).
We have previously held that N.C.G.S. § 7B-1109(e) “places a duty on the trial
court as the adjudicator of the evidence”4 which is equivalent to the duty imposed by
Rule 52(a)(1) of the North Carolina Rules of Civil Procedure. In re T.N.H., 372 N.C.
403, 407, 831 S.E.2d 54, 59 (2019) (citing N.C.G.S. § 1A-1, Rule 52(a)(1) (2019)). Rule
52(a)(1) mandates that, “[i]n all actions tried upon the facts without a jury . . . , the
court shall find the facts specially and state separately its conclusions of law
3 When a juvenile is the subject of a pending abuse, neglect, or dependency proceeding,
a party seeking termination of parental rights may file a motion in the cause in lieu of a
petition. See N.C.G.S. § 7B-1102 (2019). As a technical matter, N.C.G.S. § 7B-1110(c) directs
the trial court to dismiss a petition and to deny a motion. However, we shall refer to the trial
court’s disposition in this case as denying petitioner’s petition, as that wording is used in the
“Termination Order.”
4 The fact-finding requirement which is essential to support the trial court’s
dispositional determination of a child’s best interests is governed by N.C.G.S. § 7B-1110(a)
(2019), which provides that the court “shall consider the following [six] criteria and make
written findings regarding the following that are relevant[.]” Id. (emphasis added); see also In
re A.R.A., 373 N.C. 190, 199, 835 S.E.2d 417, 424 (2019) (“[A] factor is ‘relevant’ if there is
‘conflicting evidence concerning’ the factor, such that it is ‘placed in issue by virtue of the
evidence presented before the [district] court[.]’ ” (second and third alterations in original)
(quoting In re H.D., 239 N.C. App. 318, 327, 768 S.E.2d 860, 866 (2015))).
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thereon[.]” N.C.G.S. § 1A-1, Rule 52(a)(1). In explaining the trial court’s obligation
arising under N.C.G.S. § 7B-1109(e), we quoted a prior decision of this Court which
applied Rule 52(a)(1):
[W]hile 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.
In re T.N.H., 372 N.C. at 407–08, 831 S.E.2d at 59 (quoting Quick v. Quick, 305 N.C.
446, 451–52, 290 S.E.2d 653, 658 (1982) (emphasis and alteration in original)). “The
purpose of the requirement that the court make findings of those specific facts which
support its ultimate disposition of the case is to allow a reviewing court to determine
from the record whether the judgment—and the legal conclusions which underlie it—
represent a correct application of the law.” Coble v. Coble, 300 N.C. 708, 712, 268
S.E.2d 185, 189 (1980).
By its own terms, N.C.G.S. § 7B-1109(e) applies equally to instances in which
the trial court “adjudicate[s] the existence or nonexistence of any of the circumstances
set forth in G.S. 7B-1111[.]” Id. (emphasis added). Subsection 7B-1110(c) expressly
requires the trial court to “mak[e] appropriate findings of fact and conclusions” when
denying relief based on the absence of statutory grounds for termination.
Consequently, we interpret N.C.G.S. § 7B-1109(e) as placing the same duty on the
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trial court to “find the facts specially and state separately its conclusions of law
thereon,” regardless of whether the court is granting or denying a petition to
terminate parental rights. N.C.G.S. § 1A-1, Rule 52(a)(1); see also In re T.N.H., 372
N.C. at 407, 831 S.E.2d at 59.
In its “Termination Order,” the trial court found dozens of evidentiary facts
recounting the parties’ respective actions during the course of the underlying juvenile
proceeding and describing respondent’s current employment, mental health
diagnosis, and family life. Nonetheless, the trial court found none of the ultimate facts
required to support an adjudication of “the existence or nonexistence of any of the
circumstances set forth in G.S. 7B-1111 . . . .” N.C.G.S. § 7B-1109(e) (emphasis added).
Combined with the trial court’s bare conclusion of law5 that petitioner failed to prove
that “the necessary grounds exist to terminate the [r]espondent’s parental rights[,]”
these evidentiary findings do not meet the requirements of Rule 52(a)(1) as applied
to adjudicatory orders under N.C.G.S. §§ 7B-1109(e) and -1110(c).
“Ultimate facts are the final facts required to establish the plaintiff’s cause of
action or the defendant’s defense; and evidentiary facts are those subsidiary facts
required to prove the ultimate facts.” Woodard v. Mordecai, 234 N.C. 463, 470, 67
S.E.2d 639, 644 (1951). We have recognized that
5 We note the trial court also concluded that it “ha[d] jurisdiction over the matter
pursuant to N.C.G.S. § 7B-1101 [(2019),]” and that respondent’s parental rights “should not
be terminated.” Neither of these additional conclusions alters our view that the court’s
adjudicatory findings are inadequate.
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the line of demarcation between ultimate facts and legal
conclusions is not easily drawn. An ultimate fact is the final
resulting effect which is reached by processes of logical
reasoning from the evidentiary facts. Whether a statement
is an ultimate fact or a conclusion of law depends upon
whether it is reached by natural reasoning or by an
application of fixed rules of law.
Id. at 472, 67 S.E.2d at 645 (citations omitted); see also In re N.D.A., 373 N.C. 71, 76,
833 S.E.2d 768, 772–73 (2019) (defining “an ‘ultimate finding [a]s a conclusion of law
or at least a determination of a mixed question of law and fact’ [which] should ‘be
distinguished from the findings of primary, evidentiary, or circumstantial facts.’ ”
(quoting Helvering v. Tex-Penn Oil Co., 300 U.S. 481, 491, 57 S. Ct. 569, 574, 81 L.
Ed. 755, 762 (1937)).
Compliance with the fact-finding requirements of N.C.G.S. §§ 7B-1109(e)
and -1110(c) is critical because
[e]ffective appellate review of an order entered by a trial
court sitting without a jury is largely dependent upon the
specificity by which the order’s rationale is articulated.
Evidence must support findings; findings must support
conclusions; conclusions must support the judgment. Each
step of the progression must be taken by the trial judge, in
logical sequence; each link in the chain of reasoning must
appear in the order itself. Where there is a gap, it cannot
be determined on appeal whether the trial court correctly
exercised its function to find the facts and apply the law
thereto.
Quick, 305 N.C. at 458, 290 S.E.2d at 661 (quoting Coble, 300 N.C. at 714, 268 S.E.2d
at 190).
Here, petitioner presented the trial court with four potential grounds for the
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termination of respondent’s parental rights: neglect under N.C.G.S. § 7B-1111(a)(1);
lack of reasonable progress under N.C.G.S. § 7B-1111(a)(3); dependency under
N.C.G.S. § 7B-1111(a)(6); and abandonment under N.C.G.S. § 7B-1111(a)(7). The trial
court neglected to find the ultimate facts which would be dispositive of any of these
grounds. Moreover, the trial court’s general conclusion of law singly offers no analysis
of the legal standards applied to petitioner’s claims.
Subdivision 7B-1111(a)(1) authorizes the trial court to terminate one’s
parental rights upon proof that “[t]he parent has . . . neglected the juvenile.” N.C.G.S.
§ 7B-1111(a)(1). The trial court found that Katie had been adjudicated as neglected
on 3 December 2014, but made no findings on the dispositive question of whether
respondent was neglecting Katie at the time of the termination hearing within the
meaning of N.C.G.S. § 7B-101(15) (2019). See, e.g., In re Young, 346 N.C. 244, 248,
485 S.E.2d 612, 615 (1997) (“A finding of neglect sufficient to terminate parental
rights must be based on evidence showing neglect at the time of the termination
proceeding.”).
Similarly, with regard to N.C.G.S. § 7B-1111(a)(2), the trial court’s findings do
not address whether respondent “willfully left the juvenile in foster care or placement
outside the home for more than 12 months”6 and, if so, whether “reasonable progress
6We do not reach the merits of respondent’s contention that N.C.G.S. § 7B-1111(a)(2)
would seem inapplicable to the facts of this case inasmuch as Katie was in her mother’s
custody at the time that the petition was filed. See generally In re A.C.F., 176 N.C. App. 520,
526, 626 S.E.2d 729, 734 (2006) (measuring the period of “more than twelve months” under
N.C.G.S. § 7B-1111(a)(2) as “beginning when the child was ‘left’ in foster care or placement
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under the circumstances has been made [by respondent] in correcting those
conditions which led to the removal of the juvenile.” Id.; see also In re O.C., 171 N.C.
App. 457, 464, 615 S.E.2d 391, 396 (articulating “two[-]part analysis” for
adjudications under N.C.G.S. § 7B-1111(a)(2)), disc. review denied, 360 N.C. 64, 623
S.E.2d 587 (2005); In re C.C., 173 N.C. App. 375, 384, 618 S.E.2d 813, 819 (2005)
(reversing termination of parental rights under N.C.G.S. § 7B-1111(a)(2) where “the
trial court’s order does not contain adequate findings of fact that respondent acted
‘willfully’ or . . . adequate findings on respondent’s progress”).
An adjudication of dependency under N.C.G.S. § 7B-1111(a)(6) requires a
showing that (1) “the parent is incapable of providing for the proper care and
supervision of the juvenile, such that the juvenile is a dependent juvenile within the
meaning of G.S. 7B-101, and . . . there is a reasonable probability that such
incapability will continue for the foreseeable future[,]” and (2) “the parent lacks an
appropriate alternative child care arrangement.” Id. “Thus, the trial court’s findings
regarding this ground ‘must address both (1) the parent’s ability to provide care or
supervision, and (2) the availability to the parent of alternative child care
arrangements.’ ” In re L.R.S., 237 N.C. App. 16, 19, 764 S.E.2d 908, 910 (2014)
outside the home pursuant to a court order, and ending when the motion or petition for
termination of parental rights was filed”); see also N.C.G.S. § 7B-101(18b) (2019) (defining
“[r]eturn home or reunification” as “[p]lacement of the juvenile in the home of either parent
or placement of the juvenile in the home of a guardian or custodian from whose home the
child was removed by court order” (emphasis added)).
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(quoting In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005)).
Because proof of both the parent’s incapability to provide proper care and
supervision and the parent’s lack of an alternative child care arrangement is required
to terminate parental rights under N.C.G.S. § 7B-1111(a)(6), a trial court may
adjudicate the nonexistence of this ground by finding the absence of either element,
or by finding the petitioner’s failure to prove either element by clear, cogent, and
convincing evidence. N.C.G.S. § 7B-1109(c); see also N.C.G.S. §§ 7B-1109(e), -1110(c).
In the instant case, the trial court made neither of these potential findings.
We note that petitioner does not argue on appeal that the evidence supported
the termination of respondent’s parental rights for dependency. Although petitioner
does not expressly abandon this termination ground, nonetheless its omission from
the pertinent arguments of her appellate brief implies that she recognizes that the
circumstances contemplated by N.C.G.S. § 7B-1111(a)(6) do not exist in this case. As
discussed, the statutory provision requires proof here that respondent’s inability to
provide for Katie’s care and supervision rendered her “a dependent juvenile within
the meaning of G.S. 7B-101[.]” N.C.G.S. § 7B-1111(a)(6). Section 7B-101 defines a
“[d]ependent juvenile” as
in need of assistance or placement because (i) the juvenile
has no parent, guardian, or custodian responsible for the
juvenile’s care or supervision or (ii) the juvenile’s parent,
guardian, or custodian is unable to provide for the
juvenile’s care or supervision and lacks an appropriate
alternative child care arrangement.
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N.C.G.S. § 7B-101(9) (2019). Regardless of respondent’s abilities, Katie was not “in
need of assistance or placement” at the time that the petition was filed because she
was in the legal and physical custody of her mother. Id. Accordingly, Katie was not
“a dependent juvenile within the meaning of G.S. 7B-101” as required to terminate
respondent’s parental rights pursuant to N.C.G.S. § 7B-1111(a)(6).
Finally, N.C.G.S. § 7B-1111(a)(7) authorizes the termination of parental rights
if “[t]he parent has willfully abandoned the juvenile for at least six consecutive
months immediately preceding the filing of the petition . . . .” Id. Although not defined
by North Carolina’s Juvenile Code, “abandonment imports any wil[l]ful or intentional
conduct on the part of the parent which evinces a settled purpose to forego all parental
duties and relinquish all parental claims to the child.” Pratt v. Bishop, 257 N.C. 486,
501, 126 S.E.2d 597, 608 (1962). This Court has specifically held that the issue of the
willfulness of a parent’s conduct is “a question of fact to be determined from the
evidence.” Id.
The trial court’s findings in the present case offer no assessment regarding the
willfulness of respondent’s conduct toward Katie on the matter of abandonment
during the six months at issue under N.C.G.S. § 7B-1111(a)(7). See In re I.R.L., 263
N.C. App. 481, 484, 823 S.E.2d 902, 905 (N.C. Ct. App. 2019) (remanding for further
findings where “[t]he trial court’s order fails to address the willfulness of Father’s
conduct, a required element under N.C. Gen. Stat. § 7B-1111(a)(4) and (7)”). The
inadequacy of the trial court’s findings is further displayed by its failure to identify
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“the determinative six-month period” governing its abandonment inquiry. In re
C.B.C., 373 N.C. 16, 23, 832 S.E.2d 692, 697 (2019).
In urging this Court to affirm the “Termination Order,” both respondent and
the guardian ad litem (GAL) emphasize the large number of evidentiary findings
made by the trial court. They cite the Court of Appeals decision of In re B.C.T., 828
S.E.2d 50 (N.C. Ct. App. 2019) as disclaiming the need for particular “magic words”
in the trial court’s findings of fact.7 Id. at 58. However, the sufficiency of the trial
court’s order is not measured merely by the quantity of findings or the trial court’s
parlance. We are simply unable to undertake meaningful appellate review of the trial
court’s decision based upon a series of evidentiary findings which are untethered to
any ultimate facts which undergird an adjudication pursuant to N.C.G.S. § 7B-
1111(a) or to any particularized conclusions of law which would otherwise explain the
7 We announced a similar principle in affirming an order that ceased reunification
efforts toward a respondent-parent under the statutory predecessor to N.C.G.S. § 7B-906.2(b)
(2019), which required the court to make certain findings of fact before ceasing such efforts:
While [the trial court’s] findings of fact do not quote the precise
language of [former N.C.G.S. §] 7B-507(b), the order embraces
the substance of the statutory provisions requiring findings of
fact that further reunification efforts “would be futile” or “would
be inconsistent with the juvenile’s health, safety, and need for a
safe, permanent home within a reasonable period of time.”
In re L.M.T., 367 N.C. 165, 169, 752 S.E.2d 453, 456 (2013). In In re L.M.T., we opined that
“[t]he trial court’s written findings must address the statute’s concerns, but need not quote
its exact language.” Id. at 168, 752 S.E.2d at 455. Because the order sub judice lacks any
ultimate findings addressing the gravamen of N.C.G.S. § 7B-1111(a), we need not consider
the degree to which our holding in In re L.M.T. applies to an adjudicatory order entered
pursuant to N.C.G.S. §§ 7B-1109(e) and -1110(c).
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trial court’s reasoning.8
The Court of Appeals faced a different, though instructively relevant, issue in
In re B.C.T., where the trial court’s dispositional order included a finding,
unsupported by evidence, that a certain party was “a fit and proper person to have
the care, custody, and control of the [j]uvenile.” In re B.C.T., 828 S.E.2d at 58. The
order also included a conclusion of law “[t]hat it is in the best interests of the [j]uvenile
for [the party] to be granted the care, custody, and control of the [j]uvenile.” Id. In
reversing and remanding for a new hearing, the Court of Appeals “noted that the trial
court need not use ‘magic words’ in its findings of fact or conclusions of law, if the
evidence and findings overall make the trial court’s basis for its order clear.” Id.
However, just as the use of specific terminology was not necessary in In re B.C.T. to
sustain the custody award, conversely the trial court’s use of such terms in the
present case as “fit and proper person” and “best interests of the [j]uvenile” was
insufficient to substantiate its order. Id. (“Here, we have disposition orders with
‘magic words’ but no evidence to support some of the crucial findings of fact and thus
no support for the related conclusions of law.”).
8We must decline to speculate about how the evidentiary facts led the trial court to
conclude that petitioner had failed to prove the existence of any of her alleged grounds for
termination. To indulge in such conjecture would exceed the proper scope of appellate review,
thus undermining the purpose of Rule 52(a)(1) and the coordinate requirements of N.C.G.S.
§ 7B-1109(e) “to allow a reviewing court to determine from the record whether the
judgment—and the legal conclusions which underlie it—represent a correct application of the
law.” Coble, 300 N.C. at 712, 268 S.E.2d at 189; see also Godfrey v. Zoning Bd. of Adjustment
of Union Cty., 317 N.C. 51, 63, 344 S.E.2d 272, 279 (1986) (“Fact finding is not a function of
our appellate courts.”).
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Because the ‘Termination Order” under review here does not contain any of
the “magic words” associated with an adjudication under N.C.G.S. § 7B-1111(a), we
find the holding of In re B.C.T. to be inapplicable, even though the analysis employed
in that decision aids our examination. The issue before the Court in this case is not
the lack of supporting evidence for the trial court’s findings and conclusions, but a
lack of adequate findings and conclusions which would “make the trial court’s basis
for its order clear.” Id.
Respondent and the GAL also reference the Court of Appeals opinion of In re
S.R.G., 200 N.C. App. 594, 684 S.E.2d 902 (2009), disc. review and cert. denied, 363
N.C. 804, 691 S.E.2d 19 (2010) (S.R.G. II), for the principle that a trial court’s failure
to address an alleged ground for termination in its order amounts to a tacit “non-
adjudication of that ground.” They appear to argue, by way of extension of this
holding from In re S.R.G., that a trial court’s order does not need to address any of
the specific grounds for termination alleged by a petitioner when the trial court
concludes that none of the alleged grounds exist. To hold otherwise, the GAL
contends, would require all future orders terminating parental rights “to list all of
the grounds that [the trial court] had not adjudicated,” thereby imposing “an
unnecessary new requirement” on trial courts and creating “a potential pitfall for
other petitioners.”
Respondent and the GAL, in their respective positions, misconstrue S.R.G. II,
which involved an appeal which was lodged after remand of the Court of Appeals’
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prior decision in In re S.R.G., 195 N.C. App. 79, 671 S.E.2d 47 (2009) (S.R.G. I). The
petitioner in S.R.G. I alleged four grounds for terminating the respondent’s parental
rights, including neglect and abandonment under N.C.G.S. § 7B-1111(a)(1) and (7).
Id. at 81, 671 S.E.2d at 49. The trial court originally entered an order terminating
the respondent’s parental rights, finding “as its sole basis for termination” that the
respondent had willfully abandoned the child. Id. at 82, 671 S.E.2d at 50. In the
respondent’s appeal in S.R.G. I, the Court of Appeals held that the trial court had
erred in adjudicating abandonment based on the respondent’s “actions during the
relevant six[-]month period[.]” Id. at 87, 671 S.E.2d at 53. The cause was remanded
to the trial court “for further action consistent with this opinion.” Id. at 88, 671 S.E.2d
at 53.
On remand, the trial court entered a new order terminating the respondent’s
parental rights on the grounds of neglect under N.C.G.S. § 7B-1111(a)(1). S.R.G. II,
200 N.C. App. at 597, 684 S.E.2d at 904. In S.R.G. II, the Court of Appeals held that
the “law of the case” doctrine barred the trial court from adjudicating a new ground
for termination on remand which had not been found in its original order. Id. at 597–
98, 684 S.E.2d at 904–05. The Court of Appeals reasoned that N.C.G.S. § 7B-1109(e)
provides that the trial court “shall adjudicate the existence or nonexistence of any of
the circumstances set forth in G.S. 7B–1111” at the adjudicatory hearing. Id. at 598,
684 S.E.2d at 905. This statutory language required the trial court to address all of
the petitioner’s alleged grounds at the initial termination hearing. Therefore, the
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Court of Appeals concluded, the “consequence” of the trial court’s original order
adjudicating the existence of abandonment under N.C.G.S. § 7B-1111(a)(7) was “the
nonexistence of the other two grounds alleged by [the petitioner.]” Id.
At first glance, S.R.G. II might appear to support the joint position of
respondent and the GAL that a trial court’s failure to address an alleged ground for
termination amounts to a proper adjudication of the nonexistence of the alleged
ground. While a trial court’s failure to address an alleged ground can imply that the
trial court was not persuaded it existed, it tells a reviewing court nothing about how
or why the trial court reached such a conclusion. The Court of Appeals did not affirm
the reasoning of the trial court’s original termination order or otherwise imply that
the trial court’s silence was sufficient to comply with the requirement that courts
“find the facts” under N.C.G.S. § 7B-1109(e). The opinion in S.R.G. II instead noted
that the petitioner had “failed in S.R.G. [I] to cross-assign error” to the trial court’s
non-adjudication of the two grounds in its original order. S.R.G. II, 200 N.C. App. at
599, 684 S.E.2d at 905; see also N.C. R. App. P. 10(c), 28(c) (allowing appellee to
“present issues on appeal based on any action or omission of the trial court that
deprived the appellee of an alternative basis in law for supporting the judgment”).
Because the petitioner “did not preserve this issue” by raising it on appeal in S.R.G.
I, the law of the case doctrine barred the Court of Appeals from addressing any new
potential errors in the original termination order in S.R.G. II. Id.
Furthermore, both S.R.G. I and S.R.G. II involved a trial court’s order
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terminating parental rights. The trial court’s order in the current case denied
petitioner’s termination petition pursuant to N.C.G.S. § 7B-1110(c). This distinction
makes a difference, for as previously discussed, an adjudication of any statutory
ground for termination under N.C.G.S. § 7B-1111(a) triggers the trial court’s duty to
proceed to disposition in order to “determine whether terminating the parent’s rights
is in the juvenile’s best interest.” N.C.G.S. § 7B-1110(a). In the context of a
termination order, therefore, the trial court’s failure to address more than the single
ground needed to terminate parental rights will often be harmless, albeit erroneous,
under N.C.G.S. § 7B-1109(e).
By contrast, when the trial court denies a petition at the adjudicatory stage
pursuant to N.C.G.S. § 7B-1110(c), the order must allow for appellate review of the
trial court’s evaluation of each and every ground for termination alleged by the
petitioner. In this circumstance, the implementation of a principle that a trial court’s
silence on an alleged ground amounts to a proper adjudication of its nonexistence
would hinder appellate review and effectually nullify the statutory requirement that
the trial court “mak[e] appropriate findings of fact and conclusions.” N.C.G.S. § 7B-
1110(c).
Contrary to the GAL’s assertion, our conclusion that a trial court must comply
with N.C.G.S. §§ 7B-1109(e) and -1110(c) in denying a petition for the termination of
parental rights is neither novel nor contrary to existing case law. Rather than placing
an “unnecessary new” burden on the trial courts of the state, our holding merely
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reiterates that the trial courts must make findings of “those material and ultimate
facts from which it can be determined whether the findings are supported by the
evidence and whether they support the conclusions of law reached.” Quick, 305 N.C.
at 451, 290 S.E.2d at 657. This requirement is consistent with the trial court’s duty
regarding the entry of judgments following civil bench trials under N.C.G.S. § 1A-1,
Rule 52(a)(1), see id. at 450–51, 290 S.E.2d at 657, and reinforced by this Court in our
decision in In re T.N.H., 372 N.C. at 407–08, 831 S.E.2d at 59.
Conclusion
We hold that the trial court erred in its failure to enter sufficient findings of
ultimate fact and conclusions of law to support its dismissal of the petitioner’s
termination of parental rights petition pursuant to N.C.G.S. § 7B-1110(c). Therefore,
we vacate the “Termination Order” and remand this matter to the trial court for the
entry of additional findings and conclusions. See Coble, 300 N.C. at 714, 268 S.E.2d
at 190; In re I.R.L., 823 S.E.2d at 906. On remand, we leave to the discretion of the
trial court whether to hear additional evidence. See, e.g., In re I.R.L., 823 S.E.2d at
906. In light of our determination, we do not address petitioner’s remaining
arguments on appeal.
VACATED AND REMANDED.
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