In Re Gbr

725 S.E.2d 387
CourtCourt of Appeals of North Carolina
DecidedMay 1, 2012
DocketCOA11-1354
StatusPublished

This text of 725 S.E.2d 387 (In Re Gbr) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Gbr, 725 S.E.2d 387 (N.C. Ct. App. 2012).

Opinion

725 S.E.2d 387 (2012)

In the Matter of G.B.R. and S.D.R.

No. COA11-1354.

Court of Appeals of North Carolina.

May 1, 2012.

*388 Eggers, Eggers, Eggers & Eggers, PLLC, Boone, by Kimberly M. Eggers; and Harrison & Poore, PA, by Hal Harrison, for petitioner-appellee Mitchell County Department of Social Services.

Pamela Newell for guardian ad litem.

Michael E. Casterline, Asheville, for respondent-appellant father.

STROUD, Judge.

Respondent-father appeals from the trial court's orders terminating his parental rights to the minor children on the ground of neglect. For the following reasons, we reverse in part the orders of the trial court.

I. Facts and background

The Mitchell County Department of Social Services ("DSS") filed juvenile petitions on 12 August 2009 alleging the minor children George and Sam[1] to be neglected in that they did not receive proper care, supervision, or discipline, and they lived in an environment injurious to their welfare, and dependent in that they were in need of placement. At the time the petitions were filed, respondent-father was incarcerated; the children were living with their mother.[2] DSS was granted non-secure custody of the children, and the children were placed in foster care.

The children were adjudicated neglected based solely upon the mother's acts or omissions, by orders entered 20 November 2009; the order specifically noted that "there was no evidence as to any neglectful conduct relative to the respondent father" and he "had no part to play in any of the conduct leading to the filing of the Petition herein." By disposition orders entered on the same day, the trial court authorized continued custody with DSS and ordered the children's mother to complete a substance abuse treatment program as well as satisfy all requirements set forth in her case plan with DSS. The disposition orders made no mention of respondent-father. At a permanency planning review hearing held on 3 May 2010, the trial court relieved DSS of all responsibility for reunification efforts "with either respondent parent" and authorized a permanent plan of adoption.

On 7 July 2010, DSS filed motions to terminate both parents' rights to the minor children, and alleged the ground of neglect pursuant to N.C. Gen.Stat. § 7B-1111(a)(1). On 26 October 2010, respondent-father filed a response denying the material allegations of the DSS motions and seeking to have the motions dismissed pursuant to Rule 12(b)(6) of the Rules of Civil Procedure for failure to allege sufficient facts upon which relief may be granted.

By the time the termination hearing was held on 12 July 2011, respondent-father had been released early from prison and was employed. DSS presented evidence that in 2006 the children had been adjudicated neglected in Avery County as a result of respondent-father's actions and, after all of DSS's evidence had been presented, DSS moved under N.C. Gen.Stat. § 1A-1, Rule 15(b) to amend the motions to terminate to conform with the evidence by including the additional allegation that respondent-father "was the parent involved in the petitions in Avery County where an adjudication of neglect was made based upon his conduct." Over objection, the trial court allowed the motion to amend the termination motions. The trial court denied motions to dismiss *389 made by respondent-father. The trial court made no ruling during the hearing but by written orders entered 15 August 2011, held that respondent-father neglected the minor children and that termination of respondent-father's parental rights was in the best interests of the minor children and thus ordered that his rights be terminated. Respondent-father appeals, arguing that (1) the trial court erred in allowing DSS to amend the motions to terminate his parental rights to conform to the evidence at the termination hearing; (2) the trial court erred in terminating his parental rights without making sufficient findings of fact to support a conclusion of neglect; and (3) the order of termination improperly lists conclusions of law as findings of fact and fails to state a statutory basis for termination.

II. Amendment to motions to terminate parental rights

Respondent-father first contends the trial court erred in allowing DSS to amend the motions to terminate his parental rights to conform to the evidence presented at the termination hearing. "A motion to amend is addressed to the discretion of the court, and its decision thereon is not subject to review except in case of manifest abuse." Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972) (citations omitted). But in this situation, respondent-father contends that the amendment to conform to the pleadings under N.C. Gen.Stat. § 1A-1, Rule 15(b) is not allowed as a matter of law pursuant to In re B.L.H., 190 N.C.App. 142, 660 S.E.2d 255, aff'd per curiam, 362 N.C. 674, 669 S.E.2d 320 (2008). For questions of law, we apply de novo review. In re D.S., 364 N.C. 184, 187, 694 S.E.2d 758, 760 (2010). Specifically, respondent-father, citing In re B.L.H., argues that the trial court erred in allowing the amendment because he was not properly put on notice that the adjudication of neglect from Avery County in 2006 would be added to the claims raised by the petition and used against him in the termination proceedings, as "[t]here were no facts concerning this prior case alleged in the petition[.]". Respondent-father concludes that because of the lack of notice he was "unable to effectively prepare a defense against those allegations" and the orders terminating his parental rights should be reversed.

In In re B.L.H., 190 N.C.App. 142, 660 S.E.2d 255, we addressed the issue of an amendment to a petition to terminate the parental rights of the respondent-mother. In that case, on 30 January 2007 and 5 February 2007 DSS filed petitions to terminate the parental rights of the respondent-mother, alleging that (1) the minor children were neglected and there was a high risk of repetition of neglect, pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) and that (2) the minor children had been in DSS custody for more than six continuous months and the respondent-mother had willfully failed to pay a portion of their care, pursuant to N.C. Gen.Stat. § 7B-1111(a)(3). Id. at 144, 660 S.E.2d at 256. At the hearing on these petitions, a social worker testified regarding the custody and placement of the minor children from 2005 to 2006 and DSS moved to amend the termination petitions to conform to the evidence to include an additional ground not raised in the original petition, specifically under N.C. Gen.Stat. § 7B-1111(a)(2), that the minor children had been left in foster care for a period of 12 months preceding the filing of the petition. Id. Over the respondent-mother's objection that "she received no notice of the allegation and that such an amendment was a substantial change to the petitions requiring additional time to prepare a defense[,]" the trial court allowed the amendment and subsequently entered orders terminating the respondent-mother's parental rights based only on the amended allegations pursuant to N.C. Gen.Stat. § 7B-1111(a)(2). Id.

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In re G.B.R.
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Bluebook (online)
725 S.E.2d 387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-gbr-ncctapp-2012.