In re M.J.C. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-367
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
IN THE MATTER OF:
M.J.C., A.C., M.C., and Robeson County
L.C. Nos. 08 JT 263-266
Appeal by respondent-father from order entered 15 October
2013 by Judge Herbert L. Richardson in Robeson County District
Court. Heard in the Court of Appeals 18 August 2014.
J. Hal Kinlaw, Jr., for petitioner-appellee Robeson County
Department of Social Services.
Cranfill Sumner & Hartzog LLP, by Laura E. Dean, for
guardian ad litem.
Edward Eldred, Attorney at Law, PLLC, for respondent-
appellant father.
HUNTER, Robert C., Judge.
Respondent appeals from an order terminating his parental
rights to his four children. Because the order lacks ultimate
findings of fact, we reverse and remand for new findings.
Background
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Respondent is the father of M.J.C., A.C., M.C., and L.C.
(collectively “the children”). On 11 September 2008, the
Robeson County Department of Social Services (“DSS”) filed
juvenile petitions alleging the children were neglected and
obtained nonsecure custody of the children. By order entered 24
November 2008, the trial court adjudicated the children
neglected.
DSS filed a petition to terminate respondent’s parental
rights to the children on 7 October 2011. DSS alleged that
respondent’s parental rights were subject to termination
pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) (2013) (failure to
make reasonable progress) and N.C. Gen. Stat. § 7B-1111(a)(3)
(2013) (failure to pay child support towards the care of the
children). The termination of parental rights hearing was held
on 12 September 2013, after which the trial court entered an
order concluding that grounds existed to terminate respondent’s
parental rights pursuant to section 7B-1111(a)(2). The trial
court also determined that termination of respondent’s parental
rights was in the best interest of the children and terminated
his parental rights. Respondent appeals.
Discussion
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We initially note that respondent’s notice of appeal is
deficient because the record on appeal lacks proof of service,
as required by N.C.R. App. P. 3.1(a). Because respondent’s
notice of appeal lacks a certificate of service, his appeal is
subject to dismissal. See In re C.T. & B.T., 182 N.C. App. 166,
167, 641 S.E.2d 414, 415 (dismissing the respondent-father’s
appeal because “failure to attach a certificate of service to
the notice of appeal is fatal”), aff’d per curiam, 361 N.C. 581,
650 S.E.2d 593 (2007). Recognizing that his notice of appeal is
deficient, respondent filed a petition for writ of certiorari
seeking review of the trial court’s judgment. In our
discretion, we grant the writ for the purpose of addressing the
claims raised by respondent. N.C.R. App. P. 21(a)(1) (“The writ
of certiorari may be issued in appropriate circumstances by
either appellate court to permit review of the judgments and
orders of trial tribunals when the right to prosecute an appeal
has been lost by failure to take timely action[.]”).
Respondent contends the court erred in terminating his
parental rights because it failed to include adequate findings
of fact in support of its conclusions of law. We agree.
“The standard of review in termination of parental rights
cases is whether the findings of fact are supported by clear,
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cogent and convincing evidence and whether these findings, in
turn, support the conclusions of law. We then consider, based
on the grounds found for termination, whether the trial court
abused its discretion in finding termination to be in the best
interest of the child.” In re Shepard, 162 N.C. App. 215, 221-
22, 591 S.E.2d 1, 6 (citation and quotations omitted), disc.
review denied sub nom. In re D.S., 358 N.C. 543, 599 S.E.2d 42
(2004).
“In all actions tried upon the facts without a jury or with
an advisory jury, the court shall find the facts specially and
state separately its conclusions of law thereon and direct the
entry of the appropriate judgment.” N.C. Gen. Stat. § 1A-1,
Rule 52(a)(1) (2013). “[T]he trial court must, through
‘processes of logical reasoning,’ based on the evidentiary facts
before it, ‘find the ultimate facts essential to support the
conclusions of law.’” In re O.W., 164 N.C. App. 699, 702, 596
S.E.2d 851, 853 (2004) (quoting In re Harton, 156 N.C. App. 655,
660, 577 S.E.2d 334, 337 (2003)). The trial court’s “findings
must be sufficiently specific to enable an appellate court to
review the decision and test the correctness of the judgment.”
Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982).
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Here, the trial court made over two hundred findings of
fact. With the exception of four findings of fact, none of which
address failure to make reasonable progress, the findings are
nearly verbatim recitations of the allegations contained in the
petition to terminate respondent’s parental rights and DSS’s
timeline. While these findings, few of which concern
respondent, may help establish the history and context of the
case, they do not constitute ultimate findings of fact.
Therefore, the findings of fact are not sufficient to support
the trial court’s conclusion that grounds existed to terminate
respondent’s parental rights. We further note that the court
must follow the mandates of N.C. Gen. Stat. § 7B-1110(a) in
determining what is in the children’s best interests. See N.C.
Gen. Stat. § 7B-1110(a) (2013); see also In re D.H., ___ N.C.
App. ___, ___, 753 S.E.2d 732, 735 (2014).
Conclusion
After careful review, 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.
REVERSED AND REMANDED.
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Judges DILLON and DAVIS concur.
Report per Rule 30(e).