In re J.H.

871 S.E.2d 582 (Table)

In the MATTER OF: J.H., Minor Child.

No. COA21-667

Court of Appeals of North Carolina.

Filed May 3, 2022

William Crowe, for petitioner-appellee Perquimans County Department of Social Services.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Jackson W. Moore, Jr., for guardian ad litem.

Stam Law Firm, PLLC, by R. Daniel Gibson, for respondent-appellant father.

ZACHARY, Judge.

¶ 1 Respondent-Father appeals from the trial court's order terminating his parental rights. After careful review, we vacate and remand to the trial court.

Background

¶ 2 Respondent-Father and Respondent-Mother are the parents of "Julia,"¹ who was born in October 2016. Respondent-Father was not present for her birth, and although he lived with Julia and Respondent-Mother "for almost five months in 2017, he has not seen or talked with [Julia] since June of 2018." Respondent-Father was incarcerated in Virginia when Petitioner Perquimans County Department of Social Services ("DSS") filed its juvenile petition in this matter; he remained incarcerated in Virginia for the duration of these proceedings, in which he was represented by counsel.

¶ 3 On 16 August 2019, DSS filed a juvenile petition in Perquimans County District Court alleging that Julia was neglected and dependent. That same day, the trial court entered an order granting DSS immediate nonsecure custody of Julia. On 28 August 2019, the parties consented to the entry of a continued nonsecure custody order. On 25 September 2019, the juvenile petition came on for hearing in Perquimans County District Court, and by order entered on 15 November 2019, the trial court adjudicated Julia as neglected. On 9 March 2020, the trial court entered a disposition order providing, inter alia , that Julia "shall remain in the legal custody of [DSS], with placement in [DSS]’s discretion to provide or arrange for foster care or other placement," and designating reunification with Respondent-Parents as the permanent plan for Julia.

¶ 4 Respondent-Mother made little progress with her case plan, and she stated in open court at permanency planning hearings in July and August of 2020 that she was willing to relinquish her parental rights. On 7 December 2020, Respondent-Mother executed a document voluntarily relinquishing her parental rights to Julia, surrendering Julia to DSS, and consenting to the permanent transfer of legal and physical custody of Julia to prospective adoptive parents.²

¶ 5 On 5 February 2021, DSS filed a petition to terminate Respondent-Father's parental rights, and this matter came on for hearing on 28 June 2021. Respondent-Father's counsel appeared on his behalf, with Respondent-Father participating by telephone from Coffeewood Correctional Facility in Virginia, where he was incarcerated. On 3 August 2021, the trial court entered an order terminating Respondent-Father's parental rights.

¶ 6 Respondent-Father filed his written notice of appeal on 3 September 2021. However, although properly filed with this Court, Respondent-Father's notice of appeal erroneously designated our Supreme Court as the court to which he addressed his appeal. See N.C. Gen. Stat. § 7B-1001(a)(7) (2021) (designating this Court as the proper court to address appeals of orders terminating parental rights, as of 1 July 2021). Respondent-Father also did not file his notice of appeal within the timeframe prescribed by N.C. Gen. Stat. § 7B-1001(b), and did not sign his notice of appeal on the signature line but rather wrote his name next to the signature line with a notation that he "did not [receive] this notice until 8-22-21[.]"

¶ 7 In light of the evident deficiencies of Respondent-Father's notice of appeal, Respondent-Father petitioned this Court to issue its writ of certiorari, and thereby invoke its appellate jurisdiction. See N.C.R. App. P. 21(a)(1) ("The writ of certiorari may be issued in appropriate circumstances ... to permit review of ... orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action ...."). Our courts have interpreted the term "appropriate circumstances" in Rule 21(a) to mean that "the right of appeal has been lost through no fault of the petitioner[,]" Johnson v. Taylor , 257 N.C. 740, 743, 127 S.E.2d 533, 535 (1962), and "that error was probably committed below[,]" State v. Grundler , 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959), cert. denied , 362 U.S. 917, 4 L. Ed. 2d 738 (1960).

¶ 8 "Ultimately, however, our decision to issue the writ is discretionary." In re K.P. , 249 N.C. App. 620, 623, 790 S.E.2d 744, 747 (2016). In our discretion, and "[i]n light of the serious consequences of the termination of parental rights," In re I.S. , 170 N.C. App. 78, 84, 611 S.E.2d 467, 471 (2005), we allow Respondent-Father's petition and proceed to the merits of his appeal.

Discussion

¶ 9 Termination of parental rights proceedings involve two distinct stages: (1) the adjudication stage, during which the petitioner must prove the existence of grounds for termination by clear, cogent, and convincing evidence; and (2) the disposition stage, during which the trial court determines, in its discretion, whether the respondent's parental rights should be terminated. In re White , 81 N.C. App. 82, 85, 344 S.E.2d 36, 38, disc. review denied , 318 N.C. 283, 347 S.E.2d 470 (1986).

¶ 10 In the instant case, Respondent-Father challenges the trial court's determination at the adjudication stage that grounds existed to terminate his parental rights, contending that the trial court "misunderstood and misapplied the law under N.C.G.S. § 7B-1111. It didn't address whether [he] made reasonable progress, it terminated his rights for a ground not alleged in the petition, and it relied on cases the North Carolina Supreme Court has overturned." Specifically, Respondent-Father argues that the trial court erred by concluding that grounds existed to warrant termination of his parental rights (1) under N.C. Gen. Stat. § 7B-1111(a)(2) (willfully leaving child in foster care for more than 12 months without making reasonable progress) because Respondent-Father's incarceration made his lack of contact involuntary, and the trial court did not address whether he made reasonable progress under the circumstances; (2) under N.C. Gen. Stat. § 7B-1111(a)(7) (willful abandonment) because this ground for termination was not alleged in DSS's termination petition, and the trial court did not resolve conflicts in the evidence with regard to this issue; and (3) under N.C. Gen. Stat. § 7B-1111(a)(6) (dependency) because the North Carolina Supreme Court has held that a parent does not bear the burden of locating and securing an appropriate alternative child care arrangement.

¶ 11 Without expressing any opinion on the merits of Respondent-Father's arguments, we vacate and remand to the trial court for the entry of a new order that contains sufficient findings of fact to enable appellate review.

I. Standard of Review

¶ 12 Our appellate courts review a trial court's order terminating parental rights "to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law." In re A.L.L. , 376 N.C. 99, 101, 852 S.E.2d 1, 4 (2020) (citation omitted). Our Supreme Court "has defined this standard as greater than the preponderance of the evidence standard required in most civil cases, but not as stringent as the requirement of proof beyond a reasonable doubt required in criminal cases." In re W.K. , 376 N.C. 269, 277, 852 S.E.2d 83, 90 (2020) (citation and internal quotation marks omitted). "The clear and convincing standard requires evidence that should fully convince .... such that a factfinder applying that evidentiary standard could reasonably find the fact in question." In re J.C.-B. , 276 N.C. App. 180, 2021-NCCOA-65, ¶ 14 (citation omitted). "The trial court's conclusions of law are reviewed de novo." A.L.L. , 376 N.C. at 101, 852 S.E.2d at 4.

II. Analysis

¶ 13 A single principle undergirds each of Respondent-Father's three specific arguments on appeal: that the trial court "misunderstood and misapplied" N.C. Gen. Stat. § 7B-1111(a).

¶ 14 "At the adjudicatory stage, the petitioner bears the burden of proving the existence of one or more grounds for termination under N.C. [Gen. Stat.] § 7B-1111(a) by clear, cogent, and convincing evidence." In re R.G.L. , 379 N.C. 452, 2021-NCSC-155, ¶ 12 (citation and internal quotation marks omitted); see also N.C. Gen. Stat. § 7B-1109(e) – (f). Among the grounds for termination of parental rights listed in § 7B-1111(a) are:

(1) 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.

(2) The parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile. No parental rights, however, shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty.

(3) The juvenile has been placed in the custody of a county department of social services, a licensed child-placing agency, a child-caring institution, or a foster home, and the parent has for a continuous period of six months immediately preceding the filing of the petition or motion willfully failed to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so.

....

(6) That 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 that there is a reasonable probability that the incapability will continue

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