Opinion
No. COA09-1532.
Filed April 6, 2010.
Chatham County Nos. 03 JT 23-24.
Appeal by respondent parents from order entered 11 August 2009 by Judge Beverly Scarlett in Chatham County District Court. Heard in the Court of Appeals 8 March 2010.
Northen Blue, L.L.P., by Carol J. Holcomb and Samantha H. Cabe, for Chatham County Department of Social Services, petitioner-appellee. Pamela Newell Williams, GAL Appellate Counsel, for guardian ad litem. Mercedes O. Chut, for mother, respondent-appellant. Richard E. Jester, for father, respondent-appellant.
Stephanie P., Respondent Mother, and Adam E., Respondent Father, appeal from the trial court's order terminating their parental rights to the juveniles B.E. and B.E. On appeal, Respondent Mother challenges the sufficiency of the evidence to support certain of the trial court's findings of fact and the trial court's determinations that her parental rights in Brian and Beth were subject to termination for neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), for allowing the children to remain in foster care for more than twelve months without making reasonable progress under the circumstances to correct the conditions that led to the removal of the children from the home pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), and on the ground that the children were dependent juveniles as defined in N.C. Gen. Stat. § 7B-101, in that the parents were incapable of providing for the proper care and supervision of the children, and there was "a reasonable probability that such incapability [would] continue for the foreseeable future" pursuant to N.C. Gen. Stat. § 7B-1111(a)(6). In addition, Respondent Father argues on appeal that the trial court erred by failing to conduct an inquiry into whether a guardian ad litem should have been appointed pursuant to N.C. Gen. Stat. § 7B-1101.1(c) and that the trial court erred by terminating his parental rights in the children pursuant to N.C. Gen. Stat. § 7B-1111(a)(6) given that this particular ground for termination was not alleged in the petition filed against him in this proceeding by the Chatham County Department of Social Services. After careful consideration of the record in light of the applicable law, we conclude that the trial court did not make adequate findings to support its determination that Respondent Parents' parental rights were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), N.C. Gen. Stat. § 7B-1111(a)(2), and N.C. Gen. Stat. § 7B-1111(a)(6) and that the evidentiary record did not support the trial court's determination that Respondent Parents' parental rights were subject to termination pursuant to N.C. Gen. Stat.§ 7B-1111(a)(6). As a result, we reverse the trial court's termination order and remand this case to the District Court of Chatham County for further proceedings not inconsistent with this opinion.
The pseudonym "Brian" will be used throughout the remainder of this opinion to refer to B.E. in order to protect his privacy and for ease of reading.
The pseudonym "Beth" will be used throughout the remainder of this opinion to refer to B.E. in order to protect her privacy and for ease of reading.
In his brief, Respondent Father adopted the arguments advanced by Respondent Mother as authorized by N.C.R. App. P. 28(f).
I. Factual Background
Brian and Beth were initially taken into DSS custody on 31 March 2003 following the filing of petitions alleging that they were neglected, abused, and dependent juveniles. The juvenile petitions filed by DSS on that occasion stemmed from an episode of domestic violence during which Respondent Father allegedly struck Respondent Mother with an aluminum pipe, causing severe bruising and cracking her vertebrae. Subsequently, Respondent Parents consented to the entry of an order in which Brian and Beth were adjudicated neglected juveniles. On 13 May 2004, the court entered an order returning the juveniles to the custody of Respondent Parents and terminating its jurisdiction.
On 5 August 2005, Brian and Beth came back into DSS custody as the result of the filing of juvenile petitions alleging that the children were neglected juveniles based upon Respondent Parents' arrests for selling controlled substances from the family home, the presence of a loaded gun in the residence which was accessible to the children, and further episodes of domestic violence involving Respondent Parents. Following a hearing held on 8 December 2005, the court, with the parents' consent, adjudicated Brian and Beth to be neglected juveniles.
Over the next eighteen months, a series of services were provided to Respondent Parents, Brian and Beth, culminating in a decision that a trial home placement would occur. In late 2006, another episode of domestic violence between Respondent Parents had resulted in a decision that they would no longer live with each other. For that reason, the proposed trial home placement was modified to an arrangement under which the children would reside with Respondent Mother and would be co-parented by both Respondent Parents. At the time that the trial home placement was approved, both DSS and the children's guardian ad litem were concerned that the proposed arrangements would not be successful. However, both DSS and the GAL believed that everything else that could be done except such a trial placement had already been tried and that the Respondent Parents should be given an opportunity to attempt to successfully reunite the family. Unfortunately, however, DSS concluded in March 2007 that the trial home placement had not been successful for a number of reasons and removed Brian and Beth from the home. The children have remained in foster care since the termination of this trial home placement.
Following a permanency planning hearing held on 25 January 2008, the court entered an order changing the permanent plan from reunification with Respondent Parents to adoption. On 24 March 2008, DSS filed motions seeking the termination of Respondent Parents' parental rights in Brian and Beth. After several days of hearings, the trial court entered an order on 11 August 2009 terminating Respondent Parents' parental rights in Brian and Beth on the grounds that (1) the children had been willfully left in foster care for more than twelve months without Respondent Parents showing to the satisfaction of the court that substantial progress had been made in correcting the conditions which led to the children's removal from the home; (2) Respondent Parents are incapable of providing for the proper care and supervision of the children such that they are dependent juveniles; and (3) the children have been neglected by their parents. Respondent Parents have noted appeals from the trial court's termination order to this Court.
II. Legal Analysis A. Standard of Review
An order terminating a parent's parental rights must be based upon adequate findings of fact, supported by clear, cogent and convincing evidence, which establish the existence of a statutory ground for termination. In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997). In reviewing a trial court's termination order, an appellate court is required to ascertain whether the findings of fact are supported by clear, cogent and convincing evidence and whether the findings of fact support the conclusions of law. In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6 (2004) (citation omitted), disc. review denied, 358 N.C. 543, 599 S.E.2d 42 (2004). An appellate court is bound by the trial judge's findings of fact "where there is some evidence to support those findings, even though the evidence might sustain findings to the contrary." In re Montgomery, 311 N.C. 101, 110-11, 316 S.E.2d 246, 252-53 (1984).
B. Basic Framework for the Conduct of Termination Proceedings
A termination of parental rights proceeding is conducted in two phases: (1) an adjudication phase that is governed by N.C. Gen. Stat. § 7B-1109 and (2) a disposition phase that is governed by N.C. Gen. Stat. § 7B-1110. In re Shephard, 162 N.C. App. at 221, 591 S.E.2d at 5. During the adjudication phase, the petitioner has the burden of demonstrating by clear, cogent and convincing evidence that one or more of the statutory grounds for termination set forth in N.C. Gen. Stat. § 7B-1111 exist. Id. The standard of review applied in evaluating challenges to the trial court's decisions at the adjudication phase is whether the trial court's findings of fact are supported by clear, cogent and convincing evidence and whether the trial court's findings of fact support the trial court's legal conclusions. In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 397 (1996). If the petitioner satisfies its burden of proving the existence of at least one ground for termination, the trial court proceeds to the disposition stage, at which it considers whether termination of the parent's parental rights is in the best interests of the child. N.C. Gen. Stat. § 7B-1110(a); In re Shermer, 156 N.C. App. 281, 285, 576 S.E.2d 403, 406 (2003). If the trial court determines, in the exercise of its sound discretion, that the child's best interests would be served by termination of the parent's parental rights, it may do so. Id.
C. Specific Grounds for Termination of Parental Rights 1. Failure to Make Reasonable Progress
The first grounds for termination upon which the trial court attempted to rely was that Respondent Parents "ha[d] willfully left [Brian and Beth] 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 ha[d] been made in correcting those conditions which led to the removal of the juvenile[s]." N.C. Gen. Stat. § 7B-1111(a)(2). In order to terminate a parent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), the trial court is required to find that (1) the parent willfully left the juvenile in foster care for over twelve months and that (2) the parent has not made reasonable progress under the circumstances toward correcting the conditions which led to the removal of the juvenile. In re O.C. O.B., 171 N.C. App. 457, 464-65, 615 S.E.2d 391, 396, disc. review denied, 360 N.C. 64, 623 S.E.2d 587 (2005). According to well-established North Carolina law, a finding of "willfulness" as that term is used in N.C. Gen. Stat. § 7B-1111(a)(2) does not require a showing of parental fault. Oghenekevebe, 123 N.C. App. at 439, 473 S.E.2d at 398. As a general proposition, a finding of "willfulness" requires proof that the parent had the ability to make reasonable progress but was unwilling to make the necessary effort. In re Baker, 158 N.C. App. 491, 494, 581 S.E.2d 144, 146 (2003). In order to properly support a determination that a parent's parental rights in a minor child are subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), the trial court should make findings of fact addressing the concerns which led to the juvenile's removal and the conditions which the parents failed to address. In re Locklear, 151 N.C. App. 573, 576, 566 S.E.2d 165, 167 (2002); see also In re Anderson, 151 N.C. App. 94, 99, 564 S.E.2d 599, 603 (2002) (holding that trial court failed to making adequate findings of fact regarding "willfulness" or "lack of reasonable progress under the circumstances" in connection with its determination that a parent's parental rights were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(2)); In re Matherly, 149 N.C. App. 452, 562 S.E.2d 15 (2002) (holding that a trial court's order finding that a parent's parental rights were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) did not contain sufficient findings of fact addressing the issue of the parent's "willfulness"). On appeal, Respondent Parents contend that the trial court's order does not contain a finding that "either parent willfully failed to correct any undesirable condition" and that any finding that the trial court might have made with respect to the willfulness issue would have lacked adequate record support.
In its termination order, the trial court made a series of factual findings, including findings that:
Respondent Parents have challenged a significant number of the trial court's factual findings as lacking adequate evidentiary support. In light of our disposition of Respondent Parents' other challenges to the trial court's termination order, with one exception noted below, we need not address the sufficiency of the evidence to support the trial court's findings of fact. Respondent Parents will, of course, have the right to challenge the validity of any factual findings contained in any order that the trial court enters on remand to the extent that they deem it necessary to do so in any subsequent appellate proceedings that may occur in this case.
8. [Brian and Beth] were originally placed in the custody of the Chatham County Department of Social Services in March, 2003. They were returned to the custody of their parents in December, 2003. In August, 2005, custody of [Brian and Beth] was again awarded to CCDSS and they have remained in custody since that time.
9. [Brian and Beth] have lived in several different foster homes. They were sent home for a trial home placement in February, 2007, but were removed from the parents' home about one month later. They have remained in foster care since March, 2007.
10. [Brian and Beth] were removed from the home, secondary to their parents being charged with possession of narcotics.
11. During the period of time [Brian and Beth] were placed in [Respondent Parents'] home, [Respondent Parents] were unable to meet the children's needs, as follows:
a) [Respondent Parents] did not take the children to their regular therapy appointments. Respondent [M]other did not go to her therapy appointments.
b) On the first day of school, the children's registration materials had not been completed by [Respondent Parents]. They were tardy to school on February 1 and February 16, 2007.
c) [Respondent Parents] did not take the children to their medical appointments.
d) [Respondent Parents] failed to make financial arrangements for the children's participation at the Teen Center.
e) [Respondent Parents] sent [Brian] to school and/or the Teen Center with his medication expecting him to medicate himself.
f) [Brian] was left without transportation home from school and/or the Teen Center because [Respondent Parents] failed to pick him up.
g) While at the Teen Center, [Brian] was observed rubbing his genital area and making noises. Although the maternal grandfather was present and apparently observed [Brian], he did nothing to respond to [Brian's] inappropriate behavior.
h) On several occasions, [Respondent Parents] did not take the children to the Teen Center and failed to make appropriate payments to the Teen Center for the children's attendance and participation.
12. During the children's trial home placement, the environment was neglectful.
13. [Brian and Beth] are damaged children due to their exposure to criminal activity, drug use and the violence they observed while in the home of their parents.
14. While in the custody and care of Respondent [Parents], both children were exposed to severe and continuous domestic violence.
15. At age seven (7), [Brian] described the violence as two (2) wolves fighting.
16. At age seven (7), [Brian] perceived his parents as dangerous.
17. [Brian] witnessed his father break his mother's tooth.
18. [Brian] witnessed his mother stab his father in the arm with a steak knife.
19. At age three (3), [Beth], [Brian's] younger sister, was able to describe an incident of domestic violence whereby Respondent [F]ather struck Respondent [M]other with a pipe.
20. [Brian] was over-disciplined by Respondent [F]ather.
21. [Beth] witnessed the excessive discipline of her brother, [Brian].
22. In 2003, David Rademacher, MA, LPA, LPC, NCP, conducted a Child Forensic/Mental Health Evaluation that recommended that Respondent [M]other be effectively treated for her severe Obsessive Compulsive Disorder. Respondent [M]other has failed to engage in said treatment although repeatedly requested to do so by her therapist, Paula Browder.
23. A copy of Dr. Rademacher's evaluation was presented during Mr. Rademacher's testimony. Mr. Rademacher's evaluation is included in the file of this action and the statements therein are incorporated herein by reference as though fully set forth in this court order.
24. [Brian and Beth] resided in the home in August, 2005, when the home was raided by law enforcement. At the time of the August, 2005 raid, drugs and a loaded gun, accessible to the children[,] were found.
25. Dr. Karen Yoch, a psychologist, completed a Psychological Evaluation on both parents which found them to be unable to parent the children. A copy of the Psychological Evaluation was presented as evidence, is filed in the record and the statements therein are incorporated herein by reference as though fully set forth as Findings of Fact in this order.
26. [Brian] has a bond with his parents and has . . . stated that he wishes to live with his parents.
27. [Brian's] therapist, Mark Strohl[,] testified that he believes that it is not in [Brian's] best interest to be returned to the custody and care of his parents. Further, Mr. Strohl testified that he believes that [Brian] will be able to make progress once this issue has been fully resolved. The court makes these statements by Mr. Strohl findings of fact.
28. [Brian] has had trouble with his behavior at school and with his academic progress, as well.
29. [Brian's] therapist, Mark Strohl, testified that [Brian] feels the need to know that his parents are safe and that his sister [Beth] is safe and the court so finds.
30. This court finds that the traumatic events witnessed by [Brian] while in the home of his biological parents have created a need for this child to take on a parenting role regarding the safety and wellbeing of his parents and his sister [Beth].
31. During [Brian's] various placements in foster care, Respondent [M]other has had consistent unapproved contact with [Brian]. Respondent [Parents] have written [Brian] letters which were placed in shoes that were a gift to him during visitation and they have contacted him by phone. These contacts were not approved by the Court or by CCDSS.
32. During supervised visitation with [Brian] and with [Beth], Respondent [M]other has made inappropriate comments to them, including:
a) Telling them that Respondent [M]other and Respondent [F]ather had met with James Howard (the person whose prescribed narcotic was found in [Respondent Parents'] car in order to get their criminal charges dropped.
b) Telling [Brian] that he should have fought with another child.
c) Telling [Beth] that she knows she is pretty "like Jon Benet Ramsey" and that Jon Benet's mother killed her.
d) Respondent [M]other told [Brian] that he did not have to follow foster home rules.
33. Respondent [M]other has not been able to maintain employment.
34. Respondent [P]arents have not consistently presented records of the meetings they have been ordered to attend to CCDSS.
35. The juvenile does not have the ability to protect his parents from each other and it is not in his best interest to be in an environment where he is assuming parental duties.
36. [Brian] did have a foster home placement where he bonded with the foster mother and expressed a desire to remain in her care if he could not return home. Due to health reasons, this foster mother could not accommodate the request.
37. Both children have improved behaviors since having been placed in foster care. They have responded well to the structure and boundaries set by their foster parents. [Brian] needs an environment which is structured and highly organized.
38. [Brian and Beth] have been psychologically affected by the domestic violence they witnessed while growing up in the home. [Brian] now suffers from a conduct disorder.
39. [Brian] needs an environment where the parents are highly organized.
40. [Brian] was moved to his current foster home, [o]n August 18, 2008, where he is doing extremely well and where he shows some promise of remaining. [Brian] is involved in extra-curricular activities and has improved his grades.
41. [Beth] is doing well in her current foster home. She has not stated a desire to return to the home of her parents. Her foster family wants to adopt her and she wants to remain in their home.
42. Respondent [Parents] have seemingly acknowledged that it is in [Beth's] best interest to be removed from their care, custody and control as indicated by numerous statements made by their counsel during this hearing.
43. This hearing has been focused on the Motion to terminate their parental rights [in] [Brian] as they believe [Brian] to be "unadoptable" and better off in their home.
Based on these factual findings, the trial court concluded that "[g]rounds exist for the termination of parental rights of both Respondent [Parents] in that the juveniles have been willfully left in foster care for more than 12 months, without the parents showing to the satisfaction of the Court that substantial progress has been made within 12 months in correcting those conditions which led to the removal of the juveniles."
A careful examination of the trial court's termination order reveals the presence of at least two deficiencies in the trial court's findings and conclusions with respect to the grounds for termination set out in N.C. Gen. Stat. § 7B-1111(a)(2). First, instead of requiring Respondent Parents to have made "reasonable progress," the trial court determined that they had not made "substantial progress," a standard which simply does not appear in the relevant statutory language and which suggests that the trial court may have imposed a higher standard upon Respondent Parents than that established by the General Assembly. Secondly, the trial court's findings and conclusions do not, as is required by Locklear, 151 N.C. App. at 576, 566 S.E.2d at 167, specify the conditions that led to Brian and Beth's removal or the conditions that Respondent Parents had failed to meet. As a result, we conclude that the trial court's findings do not support its conclusion that Respondent Parents' parental rights were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) and that the trial court erred by finding this ground for termination of Respondent Parents' parental rights.
2. Incapability of Providing Proper Care and Supervision
Secondly, the trial court concluded that Respondent Parents' parental rights were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(6), which provides that a parent's parental rights may be terminated in the event "[t]hat 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 [N.C. Gen. Stat. §] 7B-101, and that there is a reasonable probability that such incapability will continue for the foreseeable future." "Incapability under this subdivision may be the result of substance abuse, mental retardation, 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). A decision to terminate a parent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(6) hinges upon the existence of proof "that respondent suffered from any physical or mental illness or disability that would prevent him from providing proper care or supervision" for the juvenile on more than a temporary basis. In re Clark, 151 N.C. App. 286, 289-90, 565 S.E.2d 245, 247 (2002). On appeal, Respondent Parents challenge the trial court's decision that their parental rights were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(6) on the grounds that the record did not support a finding that they were "incapable of parenting the children" and that the trial court's findings "never address the nature of [their] incapability to parent or its anticipated duration."
Based upon the factual findings recited above, the trial court concluded in its termination order that:
Grounds exist for the termination of parental rights in that Respondent [Parents] are incapable of providing for the proper care and supervision of the juveniles, such that the juvenile is a dependent juvenile within the meaning of [N.C. Gen. Stat. §] 7B-101, and that there is a reasonable probability that such incapability will continue for the foreseeable future. Incapability under this section may be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other similar cause or condition.
A careful review of the trial court's factual findings, however, reveals that the only apparent support for its "incapability" determination lies in its discussion of the psychological evaluations performed by Dr. Yoch. Although the trial court found that Dr. Yoch had concluded that Respondent Parents were "unable to parent the children," a careful reading of Dr. Yoch's reports concerning both Respondent Mother and Respondent Father indicates that Dr. Yoch concluded that "[t]he prognosis for [Respondent Parents] to make the necessary changes so that [they] can effectively parent [their] children within the next six months is poor and within the next year, guarded, even with [their] full cooperation with the recommendations cited above." Although Dr. Yoch's report clearly supports a finding of temporary incapability, it does not support a finding of the longer-term incapability required for a finding that a parent's parental rights are subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(6). In addition, the trial court's factual findings simply do not address that portion of N.C. Gen. Stat. § 7B-1111(a)(6) which requires a showing that "an appropriate alternative child care arrangement" is not available to the parent as a precondition for the termination of his or her parental rights pursuant to this statutory subdivision. In re N.B., ___ N.C. App. ___, ___, 688 S.E.2d 713, ___ (2009). As a result, the trial court erred by concluding that Respondent Parents' parental rights in Brian and Beth were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(6).
Respondent Father also contends in reliance on In re Hardesty, 150 N.C. App. 380, 384, 563 S.E.2d 79, 82 (2002); In re C.W. and J. W., 182 N.C. App. 214, 228-29, 641 S.E.2d 725, 735 (2007); and In re B.L.H. and Z.L.H., 190 N.C. App. 142, 147, 660 S.E.2d 255, 257, aff'd per curiam, 362 N.C. 674, 669 S.E.2d 320 (2008), that the trial court erred by concluding that his parental rights were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(6) because this ground for termination was not alleged in the termination petition filed in this proceeding by DSS and because the allegations of the petition did not put him on notice that his parental rights might be subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(6). Although we are concerned that Respondent Father might not have had adequate notice that his parental rights would be deemed subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(6), we need not decide this issue given our decision to reverse the trial court's order on other grounds and given our belief that any lack of notice that might have occurred can be remedied on remand.
3. Neglect
Finally, the trial court concluded that the parental rights of Respondent Parents were subject to termination for neglect. N.C. Gen. Stat. § 7B-1111(a)(1) (2009). According to N.C. Gen. Stat. § 7B-101(15), a neglected juvenile is one
who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15) (2009). "A finding of neglect sufficient to terminate parental rights must be based on evidence showing neglect at the time of the termination proceeding." Young, 346 N.C. at 248, 485 S.E.2d at 615. If the child has been removed from the parent before the termination hearing, then "[t]he trial court must also consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect." In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). As a result, in a case, like this one, in which "a child has not been in the custody of the parent for a significant period of time prior to the termination of hearing," this Court has declined to uphold a trial court's decision to find the ground for termination enumerated in N.C. Gen. Stat. § 7B-1111(a)(1) in the absence of "clear, cogent, and convincing evidence and [a] finding that respondent has neglected his children or that any past neglect was likely to recur." Shermer, 156 N.C. App. at 286-87, 576 S.E.2d at 407. Respondent Parents contend that the trial court's findings of fact do not support its determination that their parental rights in Brian and Beth were subject to termination for neglect and that, even if the trial court's findings were sufficient to support such a determination, the record evidence did not support a finding of neglect.
Although the trial court made numerous findings of fact in its termination order, it never found that Brian and Beth had been adjudicated to have been neglected juveniles at an earlier time or that any neglect that they had previously experienced was likely to recur in the event that they were returned to the custody of Respondent Parents. Instead, based on the findings of fact recited above, the trial court concluded that:
Grounds exist for the termination of the parental rights of the above-named juvenile pursuant to N.C. [Gen. Stat. §] 7B-1111, in that the above-named juveniles have been neglected by their parent within the meaning of N.C. [Gen. Stat. §] 7B-101 in that they do not receive proper care, supervision, or discipline from his parents, guardian, custodian, or caretaker and who lives in an environment injurious to his welfare.
Given the undisputed evidence that Brian and Beth have been in DSS custody since the termination of the trial placement in March 2007 and the absence of any finding that any neglect that the children may have experienced at the hands of Respondent Parents was likely to recur in the event that they are returned to the custody of the Respondent Parents, we conclude that the trial court's determination that Respondent Parents' parental rights in Brian and Beth were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) was not supported by adequate findings of fact and that the trial court erred by finding that Respondent Parents' parental rights were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(1).
III. Conclusion
As a result, we conclude that the trial court erred by finding each of the grounds for terminating Respondent Parents' parental rights in Brian and Beth. For that reason, we conclude that the trial court's termination order should be reversed and that this case should be remanded to the Chatham County District Court for further proceedings not inconsistent with this opinion.
Respondent Father also contends, in reliance on In re N.A.L., 193 N.C. App. 114, 118-19, 666 S.E.2d 768, 771-72 (2008), that the trial court erred by failing to conduct an inquiry as to whether a guardian ad litem should have been appointed for him pursuant to N.C. Gen. Stat. § 7B-1101.1(c) in light of its determination that his parental rights were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(6). In light of our determination that the trial court erred by concluding that Respondent Father's parental rights were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(6), we need not address Respondent Father's contention on the merits, but note that a trial court has the obligation to "properly inquire into the competency of a litigant in a civil trial or proceeding when circumstances are brought to the judge's attention which raise a substantial question as to whether the litigant is non compos mentis." In re J.A.A. and S.A.A., 175 N.C. App. 66, 72, 623 S.E.2d 45, 49 (2005).
Reversed and Remanded.
Judges MCGEE and ROBERT C. HUNTER concur.
Report per Rule 30(e).