In re M.J.C.

• Court: Court of Appeals of North Carolina
• Decided: September 16, 2014
• Docket: 14-367
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 -2- 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 -3- 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, -4- 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). -5- 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. -6- Judges DILLON and DAVIS concur.

Report per Rule 30(e).