In re J.C.

• Court: Supreme Court of North Carolina
• Decided: March 18, 2022
• Docket: 166A21
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-37

No. 166A21

Filed 18 March 2022

IN THE MATTER OF: J.C. and D.C.

Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) (2019) from an order entered on

29 March 2021 by Judge Kristina Earwood in District Court, Swain County. This

matter was calendared for argument in the Supreme Court on 18 February 2022 but

determined on the record and briefs without oral argument pursuant to Rule 30(f) of

the North Carolina Rules of Appellate Procedure.

Justin B. Greene for petitioner-appellee Swain County Department of Social Services.

Womble Bond Dickinson (US) LLP, by Jonathon D. Townsend and Theresa M. Sprain, for appellee Guardian ad Litem.

Edward Eldred for respondent-father.

J. Lee Gilliam for respondent-mother.

MORGAN, Justice.

¶1 Respondent-parents appeal from an order terminating their parental rights to

two of their children: “Dylan,” born on 15 February 2009 and “Julia,” born on 23

September 2005.1 Under our legal precedent, it is clear that the order filed by the

1 All children mentioned in this opinion are identified by pseudonyms to protect their privacy. IN RE J.C. AND D.C.

Opinion of the Court

trial court in this case contains an incorrect statement of the applicable standard of

proof, leaving for this Court’s resolution only the issue of the proper remedy for this

error. After reviewing the pertinent precedent, we conclude that the trial court order

must be reversed and that the case should be remanded to the trial court for further

proceedings.

I. Factual and Procedural Background

¶2 Respondents are the parents of three children, including Dylan and Julia, who

are the subjects of the termination of parental rights order under review in this

matter. The Swain County Department of Social Services (DSS) became involved with

respondents’ family household and investigated it in the spring of 2015 and January

2016 based upon concerns regarding the sanitary conditions of the family home and

the children’s receipt of an appropriate education after the children were withdrawn

from their schools. These case investigations were closed with no services

recommended for respondents or their children. However, DSS became involved with

respondents and their household again after concerns were registered about the

welfare of the child of another family who began to reside in respondents’ home. In

early 2016, respondents allowed three minor siblings unrelated to respondents—

“Ryan,” “Charlotte,” and “Ava”—to live in respondents’ household in order to help

those children’s parents to improve their ability to care for their children. One of the

parents was dealing with a substance abuse issue and the other parent was a IN RE J.C. AND D.C.

registered sex offender. On 4 April 2016, Ryan, who at the time was four years of age,

was admitted to a hospital emergency room with life-threatening, non-accidental

injuries which required his transport to a pediatric intensive care unit. When brought

to the hospital, Ryan was alleged to have been “unresponsive,” with a temperature of

87 degrees, a pulse rate of 40, and to have been “covered with bruises, cuts and

lesions.” Ryan “was given Narcan for overdose symptoms[ ] and immediately

responded to th[at] treatment.” During various interactions and interviews which

were conducted as part of the investigation which DSS undertook subsequent to

Ryan’s hospital admission, respondents’ three children described a number of

incidents which could be deemed to constitute physical assaults and sexual abuse by

respondents against all of the children who were residing in respondents’ home:

respondents’ children, Ryan, and Ryan’s siblings.2

¶3 As a result of Ryan’s injuries and resulting condition, on 5 April 2016 DSS filed

petitions alleging, inter alia, that Ryan was an abused juvenile and that Ryan, Ryan’s

two siblings and respondents’ three children—including Dylan and Julia—were

neglected juveniles. DSS also took custody of all six children who were living in

respondents’ home at the time. On 20 July 2017, the trial court entered an order

2 Respondents were subsequently indicted for, inter alia, felony child abuse against Ryan. IN RE J.C. AND D.C.

which, inter alia,3 adjudicated respondents’ children as neglected juveniles. On 22

January 2018, the trial court entered an initial order of disposition which established

various components of respondents’ case plans with which they were to comply,

relieved DSS of further efforts to reunify the children with respondents and continued

the children’s placement outside respondents’ home. In November 2018, upon appeal

by respondents, the Court of Appeals affirmed the adjudication order but reversed

the disposition order in part, specifically to the extent that it relieved DSS of further

reunification efforts and eliminated reunification from the children’s permanent plan

and remanded the matter to the trial court for further proceedings. See In re D.C.,

262 N.C. App. 372 (2018) (unpublished). Following a hearing upon remand in July

2019, the trial court entered a new disposition order setting the primary permanent

plan as reunification with a secondary plan of adoption; conducted permanency

planning hearings; and entered subsequent permanency planning orders. In

December 2019, DSS requested that Julia’s and Dylan’s primary plans be changed to

adoption. At a permanency planning hearing in January 2020, the trial court

announced that it would change Julia’s and Dylan’s permanent plans to adoption.4

3 The adjudication order also adjudicated Ryan as an abused and neglected juvenile and his siblings as neglected juveniles. 4 For unknown reasons, the written order formally making the change was not filed

until 2 February 2021. In any event, the order was not appealed. IN RE J.C. AND D.C.

¶4 On 10 June 2020, DSS filed a petition to terminate respondents’ parental

rights to Dylan and Julia.5 The petition advanced three grounds to support the

termination of respondents’ parental rights to these juveniles: neglect, a willful

failure to make progress correcting removal conditions, and a willful failure to pay

the costs of care. See N.C.G.S. § 7B-1111(a)(1), (2), (3) (2021). Among other

contentions, the petition alleged that: (1) respondents’ criminal charges remained

pending; (2) respondents had not completed their case plans; (3) both children were

diagnosed with post-traumatic stress disorder as a result of their time spent with

respondents; and (4) the children’s therapists recommended no contact between the

children and respondents. DSS asked the trial court to find that grounds existed to

terminate the parental rights of respondents “beyond a reasonable doubt.”

¶5 Following a hearing on the petition for termination of parental rights on 2

February 2021, the trial court directed DSS to make findings of fact “based upon the

evidence presented,” and the trial court announced that it would find “grounds one

and two, specifically neglect and traumas and foster care.” At the end of the

disposition phase of the proceedings, the trial court again directed DSS to make

findings of fact “based upon the evidence presented” and the trial court announced

that it would find “it is in the best of to terminate [sic] the parental rights of the

5Respondents’ third child was also the subject of a TPR petition, but that petition was dismissed by DSS prior to the hearing because the juvenile was expected to reach the age of eighteen before the conclusion of the matter. IN RE J.C. AND D.C.

respondents.” The trial court did not state at any point during the hearing or during

the trial court’s announcement of its determination that grounds existed to terminate

respondents’ parental rights that it was employing the “clear, cogent, and convincing”

standard of proof which applies in termination of parental rights proceedings. The

trial court subsequently entered a written order on 29 March 2021 which terminated

respondents’ parental rights to Dylan and Julia. The trial court’s written order

included a statement that the trial court made its findings of fact “by a preponderance

of the evidence.” Respondents appeal.6

II. Analysis

¶6 The Juvenile Code in North Carolina mandates that a trial court’s adjudicatory

findings of fact in a termination of parental rights order “shall be based on clear,

cogent, and convincing evidence.” N.C.G.S. § 7B-1109(f) (2021); see also In re B.L.H.,

376 N.C. 118, 124 (2020). Clear, cogent, and convincing evidence is an intermediate

standard of proof which is “greater than the preponderance of the evidence standard

required in most civil cases.” In re Montgomery, 311 N.C. 101, 109–10 (1984) (citing

6 Counsel for DSS filed a motion in this Court on 28 September 2021 seeking leave to file a motion to “correct” the termination of parental rights order at issue here by means of remand to the trial court for a “correction” of the statement regarding the trial court’s standard of proof employed in making findings of fact. Counsel for DSS stated that, at the direction of the trial court, counsel drafted the judgment for termination of parental rights by “copying and pasting” passages from prior orders and thereby inadvertently included references in the trial court’s order which stated that “preponderance of the evidence” was the standard of proof employed in these termination proceedings. This Court denied the DSS motion on 20 December 2021. IN RE J.C. AND D.C.

Santosky v. Kramer, 455 U.S. 745, 769 (1982)). The statutory burden of proof by clear,

cogent, and convincing evidence as provided in N.C.G.S. § 7B-1109(f) also protects a

parent’s constitutional due process rights as enunciated by the United States

Supreme Court in Santosky. 455 U.S. at 747–48 (“Before a State may sever

completely and irrevocably the rights of parents in their natural child, due process

requires that the State support its allegations by at least clear and convincing

evidence.”); see also Adams v. Tessener, 354 N.C. 57, 63 (2001) (holding that a trial

court’s determination that “a parent’s conduct is inconsistent with his or her

constitutionally protected status must be supported by clear and convincing

evidence.”). Although the “clear, cogent, and convincing” burden of proof in

termination of parental rights proceedings is a firmly rooted standard, this Court has

necessarily addressed the considerations which a trial court must employ and

incorporate in its determinations so as to demonstrate the trial court’s compliance

with the “clear, cogent, and convincing evidence” principle enunciated in N.C.G.S. §

7B-1109(f).

¶7 In In re B.L.H., this Court held “that a trial court does not reversibly err by

failing to explicitly state the statutorily-mandated standard of proof in the written

termination order if . . . the trial court explicitly states the proper standard of proof

in open court at the termination hearing.” 376 N.C. at 120–21. In reaching this result,

we examined the statutory language utilized in N.C.G.S. § 7B-1109(f) that “all IN RE J.C. AND D.C.

findings of fact shall be based on clear, cogent, and convincing evidence” and

concluded “that the statute implicitly includes a requirement that the trial court

announce the standard of proof it is applying in making findings of fact in a

termination proceeding,” both to avoid rendering portions of the statute “useless” and

to permit a reviewing court to ensure that the proper standard of proof was utilized

by the trial court. Id. at 122–24. We expressly declined, however, to extend this

requirement that a trial court “announce” the proper standard of proof to a mandate

that the standard be explicitly stated in the trial court’s written termination of

parental rights order. Id. at 126. Thus, “the trial court satisfies the announcement

requirement of N.C.G.S. § 7B-1109(f) so long as it announces the ‘clear, cogent, and

convincing’ standard of proof either in making findings of fact in the written

termination order or in making such findings in open court.” Id.

¶8 In In re M.R.F., another case involving a termination of parental rights appeal,

this Court considered the circumstance in which the trial court did not make an

announcement either in its written order or in open court about the standard of proof

that it applied to make findings of fact. In re M.R.F., 378 N.C. 638, 2021-NCSC-111,

¶ 10. Citing our decision in In re B.L.H., this Court held that the trial court failed to

comply with the statutory mandate, while observing that

due to petitioner’s failure to present sufficient evidence to support any of the alleged grounds for the termination of the parental rights of respondent-father, we are compelled to simply, without remand, reverse the trial court’s order. IN RE J.C. AND D.C.

See Arnold v. Ray Charles Enters., Inc., 264 N.C. 92, 99 (1965) (“To remand this case for further findings, however, when defendants, the parties upon whom rests the burden of proof here, have failed to offer any evidence bearing upon the point, would be futile.”); Cnty. of Durham v. Hodges, 257 N.C. App. 288, 298 (2018) (“Since there is no evidence to support the required findings of fact, we need not remand for additional findings of fact. Instead, we reverse.”).

Id. at ¶ 12 (extraneity omitted).

¶9 All of the parties in the present case agree that the trial court here, unlike the

trial court in In re B.L.H., did not announce in open court that it was applying the

correct standard of proof. Moreover, unlike the trial court’s written order in In re

M.R.F. which was silent on the burden of proof utilized by the trial court, the trial

court’s written order purporting to terminate respondents’ parental rights here did

not simply fail to state the standard of proof, but overtly states the wrong standard

of proof—a standard which is not only lesser than that required by statute but one

which has also been held to be constitutionally insufficient to support the permanent

severance of a parent-child relationship. For this reason, each respondent argues that

the termination of parental rights order cannot stand. Likewise, the guardian ad

litem candidly acknowledges that “the trial court’s order would not be sufficient under

due process or state statutory requirements to terminate the parental rights of

[r]espondents” to Dylan and Julia. IN RE J.C. AND D.C.

¶ 10 However, DSS argues that “[w]hile the written order setting forth the grounds

for termination of parental rights states that the court’s findings were made upon a

preponderance of the evidence, it appears from examination of the record that the

court applied a higher standard in reaching its decision . . . .” (Emphasis added).

Specifically, DSS contends that

the [trial] court’s incorporation of the adjudication order’s findings of fact and the [trial] court’s finding that termination of the respondent[s’] parental rights was in the best interest of the juveniles, “beyond a reasonable doubt,” indicate that the [trial] court applied a higher standard of proof than that set forth in [the] opening decree of the written order.

...

The [trial] court . . . applied the higher “beyond a reasonable doubt” standard when it determined that termination of parental rights was in the juveniles’ best interest, and specifically mentioned that it had found that two grounds existed for the termination of parental rights, within the same sentence.

Thus, according to DSS, “[w]hen viewed in its entirety, the record indicates that the

[trial] court applied a higher standard of proof than what is reflected in the order

setting forth termination grounds.” A gaping omission in the assertions of DSS is the

agency’s failure to explain the correctness of its position in the face of this Court’s

holding in In re B.L.H. that a trial court must “announce[ ] the ‘clear, cogent, and

convincing’ standard of proof either in making findings of fact in the written

termination order or in making such findings in open court.” 376 N.C. at 126. IN RE J.C. AND D.C.

Conversely, DSS cites no legal authority supporting any latitude that this Court

possesses to allow us to infer an announcement by the trial court in the case

proceedings or the termination order that it applied the clear, cogent, and convincing

standard of proof when such an announcement plainly did not occur. DSS also fails

to directly address the arguments by respondents—or the candid concession by the

guardian ad litem—that our holdings in In re B.L.H. and In re M.R.F. make clear

that the trial court’s written order here is insufficient to terminate respondents’

parental rights and therefore cannot be affirmed. As a result, pursuant to the

precedent established by this Court, the trial court committed statutory error and the

termination of parental rights order in the instant case cannot stand.

¶ 11 Having determined that we must set aside the trial court’s termination of

parental rights order due to its mistaken employment of the wrong standard of proof,

this Court turns to the matter which consequently arises concerning the appropriate

means by which to implement corrective measures. The parties differ in their

positions regarding the appropriate remedy. Respondents both contend that the

termination of parental rights order should be vacated, thus ending this case. The

GAL and DSS7 maintain that the proper action for this Court is to remand the matter

7 In addition to its primary position that the trial court’s termination of parental rights order should be affirmed, DSS, in a conclusory fashion, asks in the alternative that, if this Court concludes that the order cannot be affirmed, then the matter should be remanded to the trial court for, inter alia, clarification of the trial court’s standard of proof. IN RE J.C. AND D.C.

to the trial court for the entry of findings of fact which are made by the correct

standard of clear, cogent, and convincing evidence, or for the trial court to clarify the

standard of proof employed in making its findings of fact.

¶ 12 In support of their request for this Court to vacate the termination of parental

rights order, respondents concede that where a trial court makes findings of fact

without announcing the standard of proof employed to consider the evidence, the

proper disposition is to vacate the order and remand for findings of fact under the

proper standard, see David N. v. Jason N., 359 N.C. 303, 307 (2005) (“The trial court,

however, failed to apply the clear and convincing evidence standard . . . , and therefore

this case must be remanded for findings of fact consistent with this standard of

evidence.”), unless the petitioner has failed to present evidence which could

potentially support such findings of fact under the proper standard of proof, such that

remand would be futile. See In re M.R.F., 378 N.C. 638, 2021-NCSC-111, ¶ 10.

Respondents cite Santosky for the proposition that, where a trial court “makes

findings of fact based on an affirmatively-stated, constitutionally-deficient standard

of proof, the remedy is to simply vacate the order” and further contend that the trial

court’s error here prejudiced respondents. See Santosky, 455 U.S. at 770.

¶ 13 The GAL and DSS, citing, inter alia, In re M.R.F., contend that the record here

would fully support the findings of fact contained in the termination of parental rights

order even under the proper standard of “clear, cogent, and convincing” evidence and IN RE J.C. AND D.C.

that therefore the proper action for this Court to take is to remand the matter for the

entry of findings of fact made under the statutory standard.

¶ 14 We first address respondent-father’s reliance on Santosky. In that case, the

United States Supreme Court majority, in holding that the “clear and convincing”

evidence standard of proof was necessary to comply with federal due process

protections, did not discuss the evidence before the New York state court which was

considering the termination of parental rights matter from which the appeal was

taken.8 We therefore find that Santosky does not control the specific issue regarding

the disposition in this case, because the present case fully falls within the parameters

of North Carolina case law precedent which has been generated pursuant to N.C.G.S.

§ 7B-1109(f) regarding the pivotal impact that the record evidence under appellate

review has in the resolution of an appeal where a trial court has committed error

regarding the standard of proof. See In re M.R.F., 378 N.C. 638, 2021-NCSC-111, ¶

26 (holding that “the evidence in the record of this case is insufficient to support

findings which are necessary to establish any of the statutory grounds for termination

. . . . upon which the trial court could expressly announce the proper application of

the standard of proof upon remand to it by this Court”); see also In re Church, 136

8 The dissenting opinion—in holding, inter alia, that the due process protections contained in the federal constitution did not mandate the “clear and convincing” standard in termination of parental rights proceedings—did look to the evidence in the case at bar and appears to suggest that the parents could not have prevailed even under the “clear and convincing” standard. Santosky, 455 U.S. at 781–85 (Rehnquist, J. dissenting). IN RE J.C. AND D.C.

N.C. App. 654, 658 (2000) (holding that where the standard of proof is not announced

by the trial court but the record contains evidence which could support findings of

fact supporting a ground for termination of parental rights under the appropriate

standard, the case should be remanded for application of the proper standard of proof

by the trial court). We further note that under In re M.R.F., for this Court to remand

in a termination of parental rights matter, the record should reflect that the trial

court has “a sufficient foundation upon which the trial court could expressly announce

the proper application of the standard of proof.” In re M.R.F., 378 N.C. 638, 2021-

NCSC-111, ¶ 26.

¶ 15 In fashioning the remedy to rectify the trial court’s erroneous termination

order, it is worthy of reiteration that in In re M.R.F., the trial court did not announce

the standard of proof that it was utilizing in its determination, while in the current

case, the trial court announced the employment of a standard of proof which

happened to be incorrect. Despite the difference, in either circumstance, upon remand

a trial court must review and reconsider the record before it by applying the clear,

cogent, and convincing standard to make findings of fact. Accordingly, we conclude

that remand of this case to the trial court for such an exercise is appropriate, unless

“the record of this case is insufficient to support findings which are necessary to

establish any of the statutory grounds for termination.” See id. IN RE J.C. AND D.C.

¶ 16 Resultingly, we lastly consider whether the record here could support the

grounds for termination of parental rights contained in the petition filed by DSS.

Without commenting on the amount, strength, or persuasiveness of the evidence

contained in the record, we merely conclude that we cannot say that remand of this

case for the trial court’s consideration of the evidence in the record utilizing the

proper “clear, cogent, convincing” standard of proof would be “futile,” In re M.R.F.,

378 N.C. 638, 2021-NCSC-111, ¶ 12 (quoting Arnold, 264 N.C. at 99), so as to compel

us to conclude that “the record of this case is insufficient to support findings which

are necessary to establish any of the statutory grounds for termination.” Id. at ¶ 26.

Therefore, we reverse the trial court’s order terminating respondents’ parental rights

to Dylan and Julia and remand the matter to the trial court for its consideration of

the record before it in order to determine whether DSS has demonstrated by clear,

cogent, and convincing evidence that one or more statutory grounds exist to permit

termination of parental rights.

REVERSED AND REMANDED.