IN RE: B.R.C. (2023)

Respondent-appellant-mother, Christina Cardwell (“respondent-mother”), appeals the trial court's order terminating her parental rights of the minor juvenile, Bailey.¹ Respondent-mother argues the trial court erred in concluding any grounds for termination existed and that it abused its discretion by terminating her parental rights. Upon review of the brief and the record, we conclude the trial court erred and reverse the order terminating respondent-mother's parental rights.

I.

Respondent-mother was diagnosed with Multiple Sclerosis (“MS”) two years before Bailey's birth. Bailey's parents separated soon after her birth and divorced. Bailey's father, Jason (“father”), and her grandmother, Gloria (“petitioner”), drove respondent-mother to New York to live. Around that time, respondent-mother and father signed a consensual separation agreement. Due to the MS, respondent-mother's condition “deteriorated” such that she entered a nursing home for full time care a few months after moving to New York. According to testimony by Gloria and the separation agreement, the parties agreed father would maintain physical custody of Bailey “subject to [respondent-mother's] visitation rights,” and parents would share legal custody, but it was understood Gloria would be keeping Bailey. The agreement did not require respondent-mother to pay any child support. Gloria testified respondent-mother was not required to pay her any child support.

Father remarried Hannah Cardwell, and together they kept Bailey until they were arrested for drug possession charges and misdemeanor child abuse in 2015. DSS petitioned and was granted the request for Gloria to have nonsecure custody of Bailey. DSS recognized respondent-mother's health limitations and inability to “physically ․ take care of [Bailey],” because respondent-mother could not care for herself. In May and August of 2016, the district court granted and continued full custody of the juvenile to Gloria, recognized respondent-mother's limitations, included visitations with respondent-mother, in person if possible, but alternatively through virtual means, and determined/maintained the permanent plan should be custody with Gloria with “a concurrent plan of Reunification.” Throughout Bailey's time with Gloria, respondent-mother would reach out through phone and Skype calls biweekly, and later weekly after establishing a set time to call with Gloria. Respondent-mother consistently sent birthday and Christmas presents for Bailey. However, respondent-mother has not visited nor seen Bailey in person since Bailey was ten months old.

In early 2021, Gloria sent a “letter of intent” to respondent-mother for the purpose of respondent-mother indicating “her wishes” “if something should happen to [respondent-mother].” During testimony, Gloria testified this “letter of intent” was not meant for respondent-mother to “giv[e] up rights.” A portion of the letter stated, “I [respondent-mother] ․ want to retain my legal rights and custody of [Bailey] indefinitely.” Respondent-mother amended the letter, with Gloria's assistance, to include a secondary placement for Bailey should anything happen to her grandparents, and to require “phone call visits” with the maternal grandfather.

In April 2021, Gloria petitioned and was granted a change in venue from Craven County to Robeson County. On 1 July 2021, Gloria petitioned the Robeson County District Court to terminate the parental rights of both respondent-mother and father. Respondent-mother filed an answer, counterclaim, and motion to dismiss the petition as it related to her. The district court granted respondent-mother's request for dismissal of paragraph 5B of the petitioner's complaint stating,

The Respondent has willfully left the said 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 within 12 months in correcting those conditions which led to the removal of the Juvenile.

The district court set the remainder of the petition for an adjudicatory hearing, which came before the district court on 29 August 2022. The district court terminated respondent-mother's and father's parental rights after determining grounds for termination existed pursuant to sections 7B-1111(a)(1), (2), (4), (6), and (7), and concluding it was in the best interests of the child. On 2 November 2022, respondent-mother timely sought appeal of the termination of parental rights order pursuant to sections 7A-27(b)(2) and 7B-1001(a)(7). Father did not appeal the termination of his parental rights to Bailey, and therefore, is not subject to this appeal.

II.

Respondent-mother argues the trial court erred by concluding grounds for terminating her parental rights existed pursuant to sections 7B-1111(a)(1), (2), (4), (6), and (7). Respondent-mother points to the trial court's dismissal of the section 7B-1111(a)(2) claim within the initial petition filed as evidence the trial court erred in concluding grounds for termination existed under section 7B-1111(a)(2). We agree. Respondent-mother also argues the trial court abused its discretion by concluding it was in the best interest of Bailey to terminate her parental rights. Because we determine the trial court erred in concluding any grounds existed for termination and reverse, we do not address respondent-mother's argument regarding the trial court's conclusion as to the best interests of Bailey.

A.

We review a trial court's order to terminate parental rights at the adjudication stage by determining whether the findings of fact “are supported by clear, cogent and convincing evidence and the findings support the conclusions of law.” In re K.N., 373 N.C. 274, 278, 837 S.E.2d 861, 865 (2020) (citation omitted). We review the conclusions of law de novo. Id. “Clear, cogent, and convincing evidence is evidence which should fully convince.” In re S.D., 243 N.C. App. 65, 67, 776 S.E.2d 862, 863 (2015).

B.

Respondent-mother specifically challenges the following findings of fact:

16. That the Respondents have only provided small gifts on birthdays and Christmas periodically.

17. That the Respondents are 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 reasonable probability that such incapability will continue for the foreseeable future.

18. That the juvenile is still a dependent juvenile.

․

25. That both the Respondent Father and Respondent Mother have willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of this petition.

26. That the Respondent Mother has had infrequent telephone contact with the minor juvenile since the entry of the Craven County Order until she left the nursing home in 2020. That afterwards, she had telephone contact with the minor child at least twice per month.

27. That the Respondent Mother moved to New York in June 28, 2013 and has not physically seen the minor juvenile in person since that time. The Respondent Mother was ambulatory at this time and could have visited with the minor juvenile, but did not.

Respondent-mother challenges finding of fact No. 16 because she did not think the gifts were small based upon her income, and because she argues she consistently sent gifts on those holidays. Petitioner testified during the termination hearing that respondent-mother sends gifts on Bailey's birthday and at Christmas. Respondent-mother testified her gifts were not small and stated she “never forget[s] her birthday or Christmas.” Petitioner testified respondent-mother sent gifts like necklaces and earrings, and respondent-mother's boyfriend testified similarly but also testified she sent: “a personalized kit with her name ․ on it ․ Various education books. Jewelry ․ a couple necklaces and a ring and a birthday card ․ Pocketbooks ․ and a doll.” Accordingly, to the extent finding of fact No. 16 relates to respondent-mother and states the gifts were sent periodically, there is not clear, cogent, or convincing evidence to substantiate it. We therefore disregard the term “periodically” in finding of fact No. 16 as it relates to respondent-mother, because there is only evidence respondent-mother provided gifts every birthday and Christmas. However, there is evidence to support the trial court's finding the gifts were “small” as the evidence demonstrates the gifts were small in size.

Respondent-mother argues the portions in findings of fact No. 17 and 18 that state Bailey is a “dependent juvenile” are conclusions of law rather than findings of fact. She alternatively argues to the extent these are findings, they are unsupported by the evidence. We agree these portions of the findings are conclusions of law given the legal definition and factors required to qualify as a dependent juvenile. See N.C. Gen. Stat. § 7B-101(9) (2022). When the trial court improperly states a conclusion of law within the findings of fact, we simply treat that finding as a conclusion of law and review it with the applicable standard. In re R.A.H., 182 N.C. App. 52, 60, 641 S.E.2d 404, 409 (2007). Accordingly, we consider this conclusion of law in section G below when we address the ground for termination pursuant to section 7B-1111(a)(6).

Next, respondent-mother challenges finding of fact No. 25 as unsupported by clear, cogent, and convincing evidence. In support of this challenge, respondent-mother states the trial court dismissed the claim against her that she willfully left “Bailey in foster care or placement outside the home for over twelve months without making reasonable progress under the circumstances to correct the conditions which led to Bailey's removal.” She points to In re D.M.O., in which we previously stated, “that the finding of willful intent for abandonment under [section] 7B-1111(a)(7) is something greater than that of the willful intent for leaving a child in foster care without making reasonable progress under [section] 7B-1111(a)(2).” 250 N.C. App. 570, 576, 794 S.E.2d 858, 863 (2016).

The trial court included the following uncontested findings regarding respondent-mother:

13. That pursuant to the Custody Order in Craven County ․ [t]he Respondent Mother was granted 1 hour of visitation per month to be supervised by the Petitioner. She was allowed to use telephone or virtual visits in lieu of physical visits which could be broken into smaller segments. Additional visitation was allowed by agreement of the parties.

․

15. [T]he Respondent Mother [has] not provided any financial assistance to the petitioner for the use and benefit of the minor child since August 5, 2016.

․

17. That the Respondent[ ] [is] incapable of providing for the proper care and supervision of the Juvenile, ․ and that there is reasonable probability that such incapability will continue for the foreseeable future.

․

19. That the Respondent Mother does not have the ability to provide for the care of the juvenile or engage in parental responsibilities as it relates to the juvenile. She is not capable of providing financially for the juvenile.

20. That the Respondent Mother has Multiple Sclerosis and is unable to provide care for herself. She was previously in a rehabilitation facility until 2020. That the Respondent Mother lives with her boyfriend and his mother who provide care for her and is currently in a wheel chair.

21. That the needs of the juvenile have not been supplemented by the Respondent Mother ․

․

26. [S]he had telephone contact with the minor child at least twice per month.

These findings of fact do not provide clear, cogent, and convincing evidence respondent-mother willfully abandoned Bailey. At best, these findings suggest respondent-mother is severally limited in her ability to care for the child, and these findings suggest respondent-mother still makes efforts through phone calls and gifts to remain in contact with Bailey despite her inability to independently care for herself. Therefore, we disregard finding of fact No. 25 as it relates to respondent-mother.

Respondent-mother also challenges the portion of finding of fact No. 26 that states, “That the Respondent Mother has had infrequent telephone contact with the minor juvenile since the entry of the Craven County Order until she left the nursing home in 2020.” Respondent-mother asserts she called Bailey weekly while in the nursing home and then called more than weekly until petitioner requested she call once a week at a certain time. She also argues the time frame of her stay in the nursing home is inaccurate because she left the nursing home in 2018 rather than 2020.

Respondent-mother testified she tried to call weekly but had issues with the phone connectivity and petitioner did not answer. Petitioner testified that while respondent-mother was in the nursing home she would call “once every two weeks” and sometimes every week. However, petitioner also testified once respondent-mother was out of the nursing home, she called multiple times in a week until petitioner set a schedule for respondent-mother to call once a week. Although the termination order incorrectly stated when respondent-mother left the nursing home, the remainder of the finding of fact is supported by clear, cogent, and convincing evidence because respondent-mother asserted she had difficulty contacting petitioner while she was in the nursing home, and both petitioner and respondent-mother testified to weekly phone calls. “At least twice monthly” is another way of stating the minimum amount of phone calls was two calls a month and suggests more than two calls were made monthly.

Finally, respondent-mother challenges the portion of finding of fact No. 27 that states, “The Respondent Mother was ambulatory at this time and could have visited with the minor juvenile, but did not.” In support, she argues she was driven to New York by petitioner and father, she had no driver's license (and still does not), and she was admitted into a nursing home for her MS within months of arriving to New York. The petitioner's testimony stating, “So she knew she had MS when she left, but she was not in a wheelchair. She was still able to travel[;]” and later testimony she was “sure [respondent-mother] could have” referring to the question about if respondent-mother could have driven when she first arrived to New York, appear to be the only evidence used to support this finding.

This is not clear, cogent, and convincing evidence respondent-mother could have visited and chose not to. Petitioner saw respondent-mother the day she dropped her off in New York, but she was not privy to respondent-mother's condition from that time to the time she was admitted into the nursing home. Respondent-mother lacked a driver's license and her MS progressed quickly enough for admission into a nursing home within months. Such evidence raises serious doubt as to her ability to visit Bailey in person in that time frame. Therefore, we disregard the portion of the trial court's finding of fact No. 27 that respondent-mother could have visited but did not.

C.

Respondent-mother argues the trial court erred by concluding grounds existed to terminate her parental rights pursuant to section 7B-1111(a)(7). We agree. Section 7B-1111(a)(7) states, “[t]he parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion ․” N.C. Gen. Stat. § 7B-1111(a)(7) (2022).

Abandonment implies conduct on the part of the parent which manifests a willful determination to forego all parental duties and relinquish all parental claims to the child. To find that a parent has willfully abandoned ․ her child, the trial court must find evidence that the parent deliberately eschewed ․ her parental responsibilities in their entirety.

In re B.R.L., 379 N.C. 15, 18, 863 S.E.2d 763, 767 (2021) (cleaned up).

Previous cases regarding the willful abandonment ground for termination suggest our Supreme Court sets a high bar for a parent to “forego all parental duties.” Id. In In re B.R.L., our Supreme Court reversed and remanded a trial court's order terminating parental rights based on willfully abandoning the juvenile. Id. The Court determined there was not supporting evidence to show willful abandonment when it considered both the challenged and unchallenged findings of “her two visits, her attempts to schedule additional visits, and her filing of a motion to increase her visitation.” Id. at 19–20, 863 S.E.2d at 768–69. Whereas in In re C.B.C., the Court determined the father willfully abandoned his child by making no efforts to call or contact the child in any way, other than a birthday card after receipt of the termination petition, despite the trial court's findings of his access to a telephone, transportation, his own car, and “access to a post office.” 373 N.C. 16, 20, 22, 832 S.E.2d 692, 695–96 (2019).

In the present case, the evidence does not support the trial court's conclusion of law that respondent-mother willfully abandoned Bailey. Respondent-mother suffers from a physically debilitating disease which resulted in her admission to a nursing home facility a few months after petitioner and father drove respondent-mother to New York. Respondent-mother's boyfriend testified she is not able to walk, drive, fly in an airplane alone, feed herself without assistance, or even bathe herself. Yet, petitioner testified respondent-mother calls weekly and sends cards and gifts for Bailey's birthday and Christmas. The trial court found she calls at least twice a month. Further, petitioner assisted respondent-mother in creating a letter of intent within the six months preceding the filing of the petition that explicitly stated respondent-mother desires to “retain [her] legal rights and custody of [Bailey] indefinitely.” Having disregarded the unsupported findings of fact and having considered the facts in light of the legal threshold for a conclusion of willful abandonment, we conclude the trial court erred by determining respondent-mother willfully abandoned Bailey. Accordingly, the trial court erred by concluding grounds existed against respondent-mother pursuant to section 7B-1111(a)(7) to terminate her parental rights.

D.

Next, respondent-mother argues the trial court erred by concluding a ground for termination of her parental rights existed pursuant to section 7B-1111(a)(1). We agree. Section 7B-1111(a)(1) states, “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 ․ a neglected juvenile within the meaning of G.S. 7B-101.” N.C. Gen. Stat. § 7B-1111(a)(1) (2022). Section 7B-101 defines a neglected juvenile as one:

whose parent, guardian, custodian, or caretaker ․ does not provide proper care, supervision, or discipline[;] ․ [h]as abandoned the juvenile[;] ․ [h]as not provided or arranged for the provision of necessary medical or remedial care[;] ․ [or] [c]reates or allows to be created a living environment that is injurious to the juvenile's welfare.

N.C. Gen. Stat. § 7B-101(15) (2022).

The trial court found father neglected Bailey, but there was no finding respondent-mother neglected Bailey. Petitioner testified the finding of neglect did not pertain to respondent-mother. Apart from finding of fact No. 25, that respondent-mother “willfully abandoned” Bailey, which we previously stated is unsupported by clear, cogent, and convincing evidence, there are no findings to support a ground of neglect by respondent-mother. Further, there are no findings of a repetition of future neglect, nor would such a finding make sense, given Bailey was placed indefinitely in petitioner's full custody. See In re E.L.E., 243 N.C. App. 301, 307–08, 778 S.E.2d 445, 450–51 (2015) (articulating the requirement a trial court not only determine a juvenile was neglected, but when the child has been out of the parent's care “for a significant period of time prior to the termination hearing” it must also make a finding of a “repetition of neglect if the juvenile were returned to her parents.”). Therefore, the trial court erred in concluding a ground for termination of respondent-mother's parental rights existed pursuant to section 7B-1111(a)(1).

E.

Next, respondent-mother argues the trial court erred in concluding a ground for termination of her parental rights existed pursuant to section 7B-1111(a)(2). We agree. Section 7B-1111(a)(2) states, “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.” N.C. Gen. Stat. § 7B-1111(a)(2) (2022).

Respondent-mother filed a motion to dismiss the petition, but the trial court granted a dismissal of only paragraph 5(b) of the petition as to respondent-mother. Paragraph 5(b) in the petition articulated a section 7B-1111(a)(2) claim. Within the final order, the trial court only included a finding that father willfully left Bailey in a placement outside the home but included no finding regarding respondent-mother. This is likely because it dismissed this ground prior to the termination hearing. Accordingly, because the trial court dismissed this ground prior to the termination hearing and because there are no findings to support this conclusion, we determine the trial court erred to the extent it concluded a ground for termination of respondent-mother's parental rights existed under section 7B-1111(a)(2).

F.

Next, respondent-mother argues the trial court erred by concluding a ground for termination of her parental rights existed pursuant to section 7B-1111(a)(4). We agree. Section 7B-1111(a)(4) states,

One parent has been awarded custody of the juvenile by judicial decree or has custody by agreement of the parents, and the other parent whose parental rights are sought to be terminated has for a period of one year or more next preceding the filing of the petition or motion willfully failed without justification to pay for the care, support, and education of the juvenile, as required by the decree or custody agreement.

N.C. Gen. Stat. § 7B-1111(a)(4) (2022). “In a termination action pursuant to this ground, petitioner must prove the existence of a support order that was enforceable during the year before the termination petition was filed.” In re Roberson, 97 N.C. App. 277, 281, 387 S.E.2d 668, 670 (1990). In a recent case, In re M.R.F., 378 N.C. 638, 645–46, 862 S.E.2d 758, 764 (2021), our Supreme Court concluded a trial court erred in determining a ground for termination existed pursuant to section 7B-1111(a)(4) when there was no evidence on the record (1) the respondent mother was granted custody and (2) the “respondent father was required by the decree or custody agreement to pay for [the juvenile's] care, support, and education.”

In the present case, there is no evidence on the record of any order requiring respondent-mother to pay for Bailey's “care, support, and education” as required within section 7B-1111(a)(4). Additionally, the separation agreement incorporated into the divorce judgment specifically stated respondent-mother was not required to pay any child support. The trial court found father was “under a court order to pay child support” but included no finding of any court order for respondent-mother. Petitioner testified during the termination hearing there is no requirement or court order for respondent-mother to pay child support. Accordingly, we conclude the trial court erred to the extent it concluded a ground existed to terminate respondent-mother's parental rights pursuant to section 7B-1111(a)(4).

G.

Finally, respondent-mother argues the trial court erred by concluding a ground existed for termination of her parental rights pursuant to section 7B-1111(a)(6). We agree. Section 7B-1111(a)(6) states,

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 for the foreseeable future. Incapability under this subdivision may be the result of substance abuse, intellectual disability, mental illness, organic brain syndrome, or any other cause or condition that renders the parent unable or unavailable to parent the juvenile and the parent lacks an appropriate alternative child care arrangement.

N.C. Gen. Stat. § 7B-1111(a)(6) (2022). “[T]he trial court must address both (1) the parent's ability to provide care or supervision, and (2) the availability to the parent of alternative child care arrangements.” In re K.D.C., 375 N.C. 784, 795, 850 S.E.2d 911, 920 (2020) (internal quotation marks and citations omitted). Further, failure on the trial court's part to include findings of fact addressing both prongs of a determination of dependency requires reversal. Id. at 796, 850 S.E.2d at 920. “Having an appropriate alternative childcare arrangement means that the parent [her]self must take some steps to suggest a childcare arrangement—it is not enough that the parent merely goes along with a plan created by DSS.” In re L.H., 210 N.C. App. 355, 366, 708 S.E.2d 191, 198 (2011).

In the present case, the trial court found both respondent-mother and father were “incapable of providing for the proper care and supervision of the Juvenile” and that it was probable this incapability would be a future concern. It found respondent-mother lacked the “ability to provide for the care of the juvenile or engage in parental responsibilities as it relates to the juvenile. She is not capable of providing financially for the juvenile.” However, the termination order included no findings within the written order as to whether respondent-mother provided alternative childcare arrangements. In her testimony during the termination hearing, petitioner admitted physical custody was given to father and agreed that respondent-mother arranged for appropriate alternative childcare with petitioner. A previous custody hearing included a finding that respondent-mother agreed Bailey should reside with petitioner as a permanent plan for custody. Further, it is notable in that custody order the trial court found DSS should not petition for termination of parental rights because it was unnecessary as the permanent plan of custody with petitioner could be achieved without termination.

The trial court orally ruled during the adjudication stage stating, “alternate childcare has not been provided by mom or dad in such a way that would be appropriate.” The trial court also stated in the oral ruling, “As it relates to an alternative childcare arrangement, those are only appropriate if they look out for all of the needs of the child. We do not have a situation where this child has been placed with someone and her financial needs, educational needs, and all these other items are being supplemented by mom or dad, for that matter.” However, these oral findings were not included in the written order. “[T]he written and entered order or judgment controls over an oral rendition of that order or judgment.” In re O.D.S., 247 N.C. App. 711, 721, 786 S.E.2d 410, 417 (2016). “The announcement of judgment in open court is the mere rendering of judgment, and is subject to change before entry of judgment. A judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.” Id. at 718, 786 S.E.2d at 415 (cleaned up).

The trial court included no written findings as to whether respondent-mother provided an appropriate alternative childcare arrangement, but it orally found respondent mother did not arrange appropriate alternative childcare. The oral findings suggest respondent-mother must look out for all the needs of the juvenile while she is with alternative childcare, but our case law does not suggest the same. In fact our Supreme Court stated,

[T]he most natural reading of [section] 7B-1111(a)(6) is that it is the objective availability or unavailability of an appropriate alternative child care arrangement that is relevant in assessing dependency under [section] 7B-1111(a)(6), not the parent's personal role in securing the alternative arrangement ․ [W]hen a parent is unable to provide appropriate care, but the child is residing with another appropriate permanent caretaker, then the parent's incapability does not itself supply a reason for the state to intervene to dissolve the constitutionally protected parent-child relationship.

In re A.L.L., 376 N.C. 99, 108, 852 S.E.2d 1, 8 (2020). The evidence on the record shows petitioner was made the legal custodian of Bailey by the juvenile order on 2 September 2016. {R p 145} Accordingly, we conclude the trial court erred in its conclusion a ground for termination of respondent-mother's parental rights existed pursuant to section 7B-1111(a)(6).

The trial court erred in determining grounds existed for termination of respondent-mother's parental rights pursuant to sections 7B-1111(a)(1), (2), (4), (6), and (7). If there is sufficient evidence to support such grounds, then it would be appropriate to remand the order for further findings consistent with this opinion. See In re A.H.D., ––– N.C. App. ––––, ––––, 883 S.E.2d 492, 501 (2023) (recognizing remand is appropriate when the petitioner presents “sufficient evidence to support termination” of one of the statutory grounds). However, if the petitioner fails to “present sufficient evidence” to support grounds for termination of parental rights at the adjudicatory stage, “we are compelled to simply, without remand, reverse the trial court's order.” In re M.R.F., 378 N.C. at 642–43, 862 S.E.2d at 763.

In the present case, not only did the trial court order lack findings of fact to support its conclusions of law regarding grounds for termination of respondent-mother's parental rights, but petitioner failed to present sufficient evidence grounds existed to support termination of respondent-mother's parental rights. In fact, petitioner's own testimony undermined her allegations against respondent-mother. Accordingly, we reverse the trial court's termination order without remand.

III.

For the foregoing reasons, we reverse the trial court's order terminating respondent-mother's parental rights.

REVERSED.

Report per Rule 30(e).

FOOTNOTES

1.   Pseudonym is used to protect the identity of the juvenile.

GORE, Judge.

Judges ZACHARY and STADING concur.