Matter of Ballard

306 S.E.2d 150 (1983) In the Matter of Christie Lynn BALLARD. No. 8226DC1016. Court of Appeals of North Carolina. September 6, 1983. *153 Robert D. McDonnell, Charlotte, as Guardian ad Litem for Christie Lynn Ballard, appellee. Richard F. Harris, III, Charlotte, for respondent, appellant. Ruff, Bond, Cobb, Wade & McNair by Moses Luski and William H. McNair, Charlotte, for petitioner, appellee. HEDRICK, Judge. The trial court in a hearing on termination of parental rights is required to "take evidence, find the facts, and ... adjudicate the existence or nonexistence of any of the circumstances set forth in G.S. 7A-289.32...." N.C.Gen.Stat. Sec. 7A-289.30(d). The trial court in this case concluded that circumstances existed under N.C.Gen.Stat. Sec. 7A-289.32(2), which identifies as a ground for termination a finding that "[t]he parent has abused or neglected the child." Respondent assigns error to this conclusion, asserting that it is not supported by the findings and the evidence. The record indicates that DSS introduced the order of 23 January 1981 which contained the earlier court's conclusion that respondent had neglected Christie. Also introduced was the parent-agency agreement showing Mrs. Ard's agreement to pay support, maintain steady employment, and establish a stable residence. Laverne King, a DSS social worker, testified that Mrs. Ard had held various jobs, gone for periods of time without employment, and lived with several different friends for varying periods of time. Ms. King also testified that Mrs. Ard's living situation began to stabilize after she married Mr. Ard and moved in with his parents. Shortly after DSS told Mrs. Ard that it would recommend a trial placement of the child with her, however, she had an argument with her husband and left the Ard residence. She remained away from 22 August 1981 to 9 September 1981. Respondent again left her husband in February 1982, shortly after learning of a possible trial placement of the child with her, and remained absent for approximately one month. Assuming arguendo that the order of 23 January 1981 did not itself establish *154 grounds for termination of parental rights under N.C.Gen.Stat. Sec. 7A-289.32(2), we nevertheless find the court's conclusion adequately supported by the evidence. The neglectful conduct forming the basis for that order occurred little more than a year prior to the filing of the petition for termination. Further, the evidence supports the findings of the trial court that Mrs. Ard was unsuccessful in establishing a stable living situation in the interim, and that she continued to evidence "a propensity to let other things come before the care and responsibility of her child." These findings provide ample basis for the court's conclusion that grounds for termination existed under N.C.Gen.Stat. Sec. 7A-289.32(2). The respondent also contends that the court erred in concluding that grounds for termination existed under N.C.Gen.Stat. Sec. 7A-289.32(4). If a conclusion that grounds exist under any section of the statute is supported by findings of fact based on clear, cogent, and convincing evidence, the order terminating parental rights must be affirmed. In re Moore, 306 N.C. 394, 293 S.E.2d 127 (1982). Because we have upheld the court's conclusion that grounds existed under N.C.Gen.Stat. Sec. 7A-289.32(2), it is unnecessary to discuss respondent's contention that grounds did not exist under N.C. Gen.Stat. Sec. 7A-289.32(4). The respondent also assigns error to the trial court's use of the same file number for both the child neglect proceedings and the termination of parental rights petition. We find it unnecessary to address this assignment of error since the respondent failed to object at the trial proceedings and properly preserve the issue for appeal. North Carolina Rule of Appellate Procedure 10(b)(1); see also, 1 N.C.Index 3d, Appeal and Error Sec. 24. Furthermore, we fail to see how the respondent has been prejudiced in any way by the use of the same file number. The respondent makes numerous assignments of error to individual findings of fact and challenges the competency and sufficiency of the evidence to support them. We have carefully reviewed the record and find all the trial judge's findings amply supported by the evidence. The respondent argues through her Assignment of Error Nos. 4 through 11 that the trial court erred by refusing to include in its order her findings of fact. We overrule these assignments of error for two reasons. First, a trial court is required to make only those findings of fact necessary to support the judgment. In re Custody of Stancil, 10 N.C.App. 545, 179 S.E.2d 844 (1971). Second, a trial judge "is not bound to find facts as proposed by a party, even though there be competent evidence to support such a finding, and his rejection of the party's tendered finding of fact may not be reversed by the appellate court and is not ground for a new trial." Branch Banking & Trust Co. v. Gill, State Treasurer, 286 N.C. 342, 355, 211 S.E.2d 327, 336 (1975). The respondent next assigns error to the adequacy of the trial court's finding of jurisdiction. She argues that the court failed to make a finding, as required by N.C.Gen.Stat. Sec. 7A-289.23, that it had jurisdiction under the provisions of N.C.Gen.Stat. Sec. 50A-3. The court did state in Finding of Fact No. 11 "that it has jurisdiction to hear and decide this matter under the provisions of the Uniform Child Custody Jurisdiction Act." This assignment of error borders on the frivolous. Respondent's final two assignments of error relate to (1) the trial court's refusal to allow into evidence testimony that respondent's mother-in-law could help the mother in the same way as a parent aid and (2) the exclusion of portions of a letter from the executive director of the Family Support Center. The respondent cites no authority for her position, nor does she demonstrate any prejudice to her case. These assignments of error are overruled. The order terminating the parental rights of the respondent is Affirmed. PHILLIPS, J., concurs. WELLS, J., dissents. *155 WELLS, Judge, dissenting: There being insufficient evidence presented of grounds to terminate the parental rights of respondent-appellant Sandra Ballard Ard, I must respectfully dissent. The statute, G.S. 7A-289.32, provides in pertinent part, that parental rights may be terminated where: . . . . . (2) The parent has abused or neglected the child.... (3) The parent has willfully left the child in foster care for more than two consecutive years without showing to the satisfaction of the court that substantial progress has been made within two years in correcting those conditions which led to the removal of the child for neglect, or without showing positive response within two years to the diligent efforts of a county department of social services, a child-caring institution or licensed child-placing agency to encourage the parent to strengthen the parental relationship to the child or to make and follow through with constructive planning for the future of the child. (4) The child has been placed in the custody of a county department of social services, a licensed child-placing agency, or a child-caring institution and the parent, for a continuous period of six months next preceding the filing of the petition, has failed to pay a reasonable portion of the cost of care for the child. It is clear that Ms. Ballard's daughter, Christie Lynn, has been in foster care for less than two years, and therefore termination may not be based on G.S. 7A-289.32(3). Further, there was insufficient evidence to terminate parental rights on the grounds of nonsupport under G.S. 7A-289.32(4). A finding that a parent has ability to pay support is essential to termination for nonsupport. In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981). At the trial below, the judge made no finding of fact that Ms. Ard was able to contribute to her daughter's support. The issue of termination of parental rights on the grounds of neglect requires more detailed discussion. There are two contexts in which the issue of parental neglect becomes important. First, neglect may be alleged as grounds for transferring temporary custody (non-secure custody order) from the parent to a social welfare organization under the provisions of G.S. 7A-576. Second, neglect is one of the three possible grounds discussed above for permanent termination of parental rights. A neglected child for purposes of either proceeding is [a] juvenile who does not receive proper care, supervision, or discipline from his parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care or other remedial care recognized under State law, or who lives in an environment injurious to his welfare, or who has been placed for care or adoption in violation of law. G.S. 7A-517(21). See In re Smith, 56 N.C.App. 142, 287 S.E.2d 440 (1982). In the case at bar, the Mecklenburg County Department of Social Services (DSS), obtained temporary custody of Christie in January, 1981, based on a judicial finding that Christie was a neglected child within the meaning of G.S. 7A-517(21). Neglect was also found as a basis for termination of respondent-mother's parental rights at the hearing in June, 1982. The trial court purported to "adopt" the findings of fact and conclusion of neglect made in the 1980 custody hearing as evidence of neglect to support termination in the 1982 hearing. The question before us therefore is what weight the judge in the termination hearing could properly accord the finding of neglect made in the temporary custody hearing a year earlier. Clearly, the prior finding of neglect may not be the sole factor relied upon in a later termination hearing, for to do so would render the termination provisions in the statute meaningless. Further, the finding of neglect is only relevant for conditions up through December, 1980, when the non-secure *156 hearing was held. In the Matter of Chosa, 290 N.W.2d 766 (Minn.1980), In re Bender, 170 Ind.App. 274, 352 N.E.2d 797 (1976). The issue of a prior finding of neglect in a custody hearing used in a termination hearing arose in In re Smith, supra, but was not decided because the parties in that case stipulated that the finding could be judicially noticed in the termination proceeding. No such stipulation was made in the case at bar, however.[1] Although there have been relatively few cases decided on this point, some courts considering the issue have held that a judge in a termination hearing must consider all evidence in the case, and make an independent finding of the existence of neglect as of the time of filing of the petition for termination of parental rights. Chapman v. Chapman, 96 Nev. 290, 607 P.2d 1141 (1980), In the Matter of Chosa, supra, In re Terry D., 148 Cal.Rptr. 221, 83 Cal.App.3d 890 (1978); In the Matter of Mirelez, 18 Wash.App. 790, 571 P.2d 969 (1977), In re Bender, supra. Other courts have held that findings in a temporary custody proceeding may be judicially noticed by the court in a later termination hearing. In Interest of Adkins, 298 N.W.2d 273 (Iowa 1980); In re Interest of Norwood, 203 Neb. 201, 277 N.W.2d 709 (1979); In re Adoption of K, 417 S.W.2d 702, (Mo.App.1967). These decisions do not state clearly what effect the taking of judicial notice has upon the evidence, but seem to indicate that the only issue to be considered in the termination hearing is whether neglect has occurred after the temporary custody proceeding. The question of what effect the trial court's prior findings in a non-secure custody proceeding should have in the termination hearing is not confined to mere relevance, but must be examined in light of due process requirements. A petition for non-secure custody does not put the parent on notice of the threat of termination of parental rights. In a temporary custody hearing, the trial court is not faced with the same awesome responsibility involved in a parental rights termination case. This is not to say that temporary custody proceedings are not profound; but the orders flowing from them are only temporary; while in a termination proceeding a possible result is that the parent's rights will be forever terminated. I, therefore, am persuaded that the trial court, in order to afford due process in termination proceedings, must in every case make its own findings, based on evidence presented in support of the petition for termination, and must afford the parent the opportunity to refute or rebut all the evidence at the termination proceeding. Under my interpretation of what due process requires, the petitioner might offer into evidence the prior orders of the court, but such orders would constitute only some evidence of the issues tried previously, and would be subject to refutation or rebuttal. The record in this case makes it clear that Judge Jones took judicial notice of Judge Bennett's prior order, accepting his findings as conclusive and his conclusions as binding. This was error. The judgment below should be reversed. First, the record shows that Judge Jones failed to make an independent finding of neglect based on all the evidence in the case, including events before and after the January, 1981 order placing custody of Christie with DSS. Second, there was no showing of neglect following the custody order sufficient to meet the clear and convincing evidence test. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), In re Matter of Smith, supra. Courts have no power to terminate parental rights merely upon showing that a parent is a transient and has a troubled marriage. Not only are the standards of behavior used by the trial court in the case at bar suspect, but there is no showing in the record that Ms. Ard's nomadic lifestyle after January, 1981, in any way harmed her daughter, Christie. Indeed, where DSS has *157 custody of a child, it will be difficult in many cases to prove evidence of neglect at all. Where a parent is not in physical control of a child, neglect in the form of failure to provide shelter, food, clothing or medical attention simply cannot occur. The issue of nonsupport is of course a different matter. Accord, Chapman v. Chapman, supra (neglect cannot be established "when a child is left by a parent in an environment where the child is known to be receiving proper care.") No one in the case at bar suggests that Christie received improper care from DSS or her foster family. While there are ways in which neglect may be shown even when DSS has custody of a child, e.g., failure to maintain contact and affection with a child, See In re Smith, supra, and In re APA, 59 N.C.App. 322, 296 S.E.2d 811 (1982), in this case there was ample evidence that respondent-mother maintained regular, loving contacts with her daughter during the entire time Christie was in foster care. On at least one occasion, Ms. Ard requested more visitation rights than DSS was willing to permit. Petitioner-DSS' arguments about Ms. Ard's failure to change her lifestyle to a more stable, conventional routine are more properly addressed to a petition to terminate parental rights under G.S. 7A-289.32(3). Under that portion of the statute, parental rights may be terminated if a parent fails to show sufficient progress toward correcting conditions which led to the initial determination of neglect, after the child had been in DSS custody for more than two years. This portion of the statute is designed to encourage courts and social services organizations to permit a parent to "rehabilitate" himself or herself, with help and counseling from social service agencies. It also places a two-year time limit, to permit termination of parental rights and possible adoption in cases where no progress is made. See Note, Termination of Parental Custody, 1980 Ariz.St.L.J. 953, 969-73. Because there was no finding of clear and convincing evidence of neglect based on all the facts up to the time of the 1982 termination petition, due process was not accorded the respondent-mother in this case and I respectfully dissent. NOTES [1] Following recognition of the stipulation of the court's earlier finding of neglect, Judge Martin noted "... the court was correct in recognizing that this case could not be decided in a vacuum. The procedural and factual history of the case was relevant and necessary to a full and fair determination of the issues." Id.