Domestic Relations  –  Parent & Child – Termination of Parental Rights – No Removal Action

Where DSS never filed a petition seeking to have the trial court adjudicate respondent’s minor daughter, “Ella,” an abused, neglected or dependent juvenile, the trial court lacked subject-matter jurisdiction to conduct permanency planning and review hearings, and its orders lacked the force of law. Although the trial court did have jurisdiction over DSS’s subsequent petition to terminate respondent’s parental rights, the facts forming the basis for the trial court’s termination of respondent’s parental rights are inextricably intertwined with the preceding legally void proceedings. The trial court failed to find sufficient facts independent from the legally void permanency planning and review hearings to prove any of the alleged grounds for terminating respondent’s parental rights.

We reverse the Court of Appeals’ decision, which upheld the termination of respondent’s parental rights.

Even though respondent stopped attending permanency planning hearings and visiting with Ella, respondent was carrying out his plan to move to California to be with his sister, whom he expected to assume custody of Ella. Since respondent’s conduct is subject to other explanations, it does not inherently suggest a willful intent to abandon Ella.

Furthermore, any purported obligation respondent had to attend the trial court’s hearings and communicate regularly with DSS was created by proceedings that the trial court lacked subject-matter jurisdiction to conduct. Similarly, respondent’s failure to attend visitations with Ella is inextricably intertwined with the fact that the trial court impermissibly precluded him from interacting with Ella in the time and manner that he saw fit, as was his right as her parent.

As to neglect, the trial court’s relevant findings of fact all relate to evidence developed during the legally invalid permanency planning and review hearings and flow from the assessments, recommendations and requirements imposed as part of that process. There is no evidence that respondent actually neglected Ella and no basis to infer that he would have done so if Ella had been in his care, especially given that respondent was, at that same time, successfully caring for three other minor children.

A parent is required to make “reasonable progress . . . in correcting those conditions which led to the removal of the juvenile.” G.S. § 7B-(a)(2). Because DSS never filed a petition to adjudicate Ella abused, dependent, or neglected, no legally valid order ever “removed” Ella from respondent’s custody. We reject the argument that failure to comply with a voluntary out-of-home family services agreement constitutes grounds for termination under G.S. § 7B-1111(a)(2). Therefore, § 7B-1111(a)(2) does not support termination of respondent’s parental rights.

Where, as here, the record evidence cannot support the necessary findings, there is no justification for a remand for further factual findings. Reversal is also appropriate because there are no material factual disputes relevant to this court’s holding that the evidence does not support termination on any of the grounds alleged by petitioners.

Reversed.

Concurrence

(Newby, J.) This matter should be remanded to the trial court. In its analysis, the majority improperly finds facts in this case, which is a job reserved for the trial court, and addresses issues unnecessary to resolve this matter, rendering much of the discussion dicta.

In re E.B. (Lawyers Weekly No. 010-116-20, 24 pp.) (Anita Earls, J.) (Paul Newby, J., concurring in the result only) Appealed from the District Court in Rowan County (Kevin Eddinger, J.) Jane Thompson for petitioner; Jeffrey Miller for respondent. N.C. S. Ct.