220 N.C. App. 309
N.C. Ct. App.2012Background
- DSS filed juvenile petitions on Aug 12, 2009 alleging neglect and dependency for George and Sam; father incarcerated; children with mother; DSS granted non-secure custody and placed in foster care.
- Nov 20, 2009 adjudication of neglect based solely on mother’s conduct; no finding of neglect by father; disposition with mother to complete treatment and case plan; father not mentioned.
- May 3, 2010 permanency planning review relieved DSS of reunification responsibility for both parents and authorized a permanent plan of adoption.
- July 7, 2010 motions to terminate rights of both parents; Oct 26, 2010 father answered denying allegations and seeking dismissal for failure to plead sufficient facts.
- July 12, 2011 termination hearing; DSS moved to amend motions to include Avery County 2006 neglect adjudication; amendment allowed; court terminated father’s rights; August 15, 2011 written orders; father appeals.
- Court ultimately reverses termination on neglect finding due to lack of support for current neglect and improper amendment; remand for reconsideration on that basis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the amendment to terminate conformed to the evidence error? | Father argues amendment was improper under B.L.H. | DSS contends Rule 15(b) permits amendment to conform to evidence. | Amendment error; reversed on that ground (but analysis hinges on notice and sufficiency of neglect findings). |
| Did the findings support neglect and termination? | Father contends findings fail to show current neglect or likelihood of repetition. | DSS asserts past neglect and incarceration justify termination for neglect. | Findings insufficient to prove current neglect or likelihood of repetition; reversed on neglect finding. |
| Were the order’s findings of fact and conclusions of law properly stated and grounded in statute? | Father argues order lists conclusions of law as findings and lacks statutory basis. | DSS relies on statutory ground for termination and separation of findings from conclusions. | Part of order defective; reversal tied to neglect finding and amended pleadings; need proper findings and statutory basis. |
Key Cases Cited
- In re B.L.H., 190 N.C. App. 142 (2008) ( amendment to terminate petitions not allowed to conform to hearing evidence; limited notice requirement)
- In re Shermer, 156 N.C. App. 281 (2003) (reversal where changed conditions not considered; no clear evidence of neglect)
- Ballard v. Ballard, 311 N.C. 708 (1984) (consider changed conditions and likelihood of repetition in neglect ruling)
- In re A.H., 183 N.C. App. 609 (2007) (notice sufficiency for grounds in termination petitions)
- In re C.W. & J.W., 182 N.C. App. 214 (2007) (notice and grounds for termination; improper grounds without notice)