In re: A.B. & J.B.Â
245 N.C. App. 35
| N.C. Ct. App. | 2016Background
- DSS removed two children (Jacob and Alexis) in 2010 and developed a reunification case plan for respondent-mother; children remained in foster/placement for years amid concerns about the mother’s mental health, anger, and domestic violence.
- DSS filed termination petitions in July 2012 alleging neglect, abandonment, failure to make reasonable progress, and failure to pay; after hearings, the trial court originally found failure to make reasonable progress but declined termination as not in best interests.
- DSS moved under Rule 60 to present additional dispositional evidence; following additional hearings, the trial court entered an order terminating respondent’s parental rights in January 2014.
- The Court of Appeals reversed and remanded in In re A.B. (AB I), 768 S.E.2d 573 (N.C. Ct. App. 2015), because the original termination order contained internal contradictions that prevented meaningful appellate review, directing entry of a new, internally consistent order and permitting the trial court discretion to receive additional evidence.
- On remand the trial court entered a clarified order (5 June 2015) terminating parental rights under N.C. Gen. Stat. § 7B-1111(a)(2) (willful leaving in placement >12 months without demonstrating reasonable progress). The respondent appealed.
Issues
| Issue | Plaintiff's Argument (DSS) | Defendant's Argument (Smith) | Held |
|---|---|---|---|
| Whether the trial court applied the correct standard of proof (clear, cogent, and convincing) for all findings | Finding 13 expressly uses that standard and the court’s oral rendition used it; therefore findings rest on the correct standard | Trial court only stated the standard in one finding and failed to affirmatively state it for all findings | Court: Standard was satisfied (oral statement + FOF 13 + no new evidence on remand); argument overruled |
| Whether adoption of petition subparagraphs (Finding 13 referencing paragraphs a–k) improperly substitutes pleadings for independent factual findings | The referenced paragraphs are background and relevant to the §7B-1111(a)(2) ground; the court made numerous other independent findings | Wholesale adoption of a–k improperly mirrors pleadings and some subparts lack supporting evidence | Court: Finding 13 as a standalone wouldn’t be dispositive, but majority (≈98.5%) of findings were independent and unchallenged; adoption acceptable in context; argument overruled |
| Whether the trial court exceeded scope of remand or contradicted prior oral rendition by materially changing findings | The remand required the trial court to fix internal inconsistencies; making changes to achieve an internally consistent order was proper | The amended order went beyond mere clarification and contradicted prior rendition/order | Court: Changes were warranted to correct inconsistencies identified in AB I; trial court acted within remand scope; argument overruled |
| Whether the trial court abused discretion by not receiving new evidence on remand about best interests / bonding | DSS relied on existing record and trial court had discretion whether to take new evidence | With three years’ lapse, remand required fresh evidence on bonding and best interests | Court: Receiving new evidence was discretionary; respondent did not request/identify excluded evidence or show abuse of discretion; argument overruled |
Key Cases Cited
- In re A.B., 768 S.E.2d 573 (N.C. Ct. App. 2015) (prior appellate opinion reversing inconsistent termination order and remanding for a clarified order)
- In re M.D., 682 S.E.2d 780 (N.C. Ct. App. 2009) (oral indication of standard of proof may suffice where written order is deficient)
- In re O.W., 596 S.E.2d 851 (N.C. Ct. App. 2004) (findings must do more than recite allegations; court must state facts specifically)
- In re J.W., 772 S.E.2d 249 (N.C. Ct. App. 2015) (trial judges commonly rely on counsel to draft orders; mirrored wording from pleadings is not necessarily reversible error)
- In re M.K. (I), 773 S.E.2d 535 (N.C. Ct. App. 2015) (order must reflect adjudication, not one-sided recitation; appellate review examines legal reasoning tied to evidentiary facts)
- In re D.H.H., 703 S.E.2d 803 (N.C. Ct. App. 2010) (willfulness for §7B-1111(a)(2) is not negated by some parental efforts to regain custody)
- In re J.K.C., 721 S.E.2d 264 (N.C. Ct. App. 2012) (unchallenged findings are binding and presumed supported by competent evidence)