Handout 1 - School of Government - University of North Carolina at ...

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petition to conform to the evidence and allege the additional ground of willfully leaving the child in foster care for more than a year without making reasonable progress in correcting the conditions that led to placement. Respondent objected. The court adjudicated only this ground and entered an order terminating respondent’s rights. Held: Reversed. 1. The court held that it was error for the trial court to allow the amendment to conform to the evidence, because a. Article 11 of G.S. Chapter 7B is silent with regard to such amendments, and b. applying G.S. 1A-1, Rule 15, to allow the amendment amounted to conferring a new procedural right, which the court has held it will not do in termination cases. 2. The court then held that the petition as filed did not give sufficient notice that the added ground might be litigated, because the children had not been in care for a year when the petition was filed and the ground could not have been alleged at that time. Rules of Civil Procedure; Evidence • The court may not terminate parental rights based solely on documentary evidence and must conduct a proper, independent hearing. • Summary termination of parental rights is not permitted. In re A.M., ___ N.C. App. ___, 665 S.E.2d 534 (9/2/08). http://www.aoc.state.nc.us/www/public/coa/opinions/2008/080484-1.htm Facts: Respondents did not appear at the hearing on DSS’s motion to terminate parental rights, and the trial court denied their counsel’s request for a continuance. DSS asked the court to take judicial notice of previous findings in the record and to accept and include in its order written reports as evidence to establish grounds to terminate respondents’ rights. The court received the reports into evidence over respondents’ objections and entered an order terminating rights based on the written reports of DSS and the guardian ad litem, prior court orders, and oral arguments by the attorneys. Holding: Reversed and remanded. 1. G.S. 1A-1, Rule 43, furthers the purposes of the Juvenile Code and, when read in conjunction with language in the Code, requires that some testimony be taken orally in open court in a hearing to terminate parental rights. 2. Termination of parental rights may not occur through a summary proceeding. 3. It was not improper for the court to consider properly admitted reports, documentary evidence, and prior orders, but a witness or witnesses must be sworn or affirmed and tendered to give some testimony. The court noted that the opinion should not be construed as requiring “extensive oral testimony.” Note: The court of appeals stated that the trial court’s “[c]onsideration of written reports [from DSS and the guardian ad litem] . . . was proper.” It is not clear whether that was because they fell within an exception to the hearsay rule, or because the adjudication and disposition hearings were combined, or for some other reason. • Petitioner must present some live testimony at a termination hearing. In re N.B., ___ N.C. App. ___, 670 S.E.2d 923 (1/20/09). http://www.aoc.state.nc.us/www/public/coa/opinions/2009/081082-1.htm Facts: DSS filed a motion for termination of parental rights in a pending neglect case. At the hearing, DSS offered as evidence prior court orders and the written reports of DSS and the guardian ad litem. The only live testimony was from respondent mother. The court terminated respondent’s rights. 12
Held: Reversed and remanded. As it did in In re A.M., ___ N.C. App. ___, 665 S.E.2d 534 (2008), the court of appeals held that the trial court must hear some testimony at a hearing on termination of parental rights. The court stated that respondent’s testimony did not support petitioner’s case and that, by relying solely on written evidence and the arguments of counsel, the trial court failed to make an independent determination of whether the neglect ground for termination existed. • The court may not adjudicate a ground for termination that is not alleged in the petition or motion. • Willful abandonment occurs only when the parent evidences an intent to forego all parental rights and duties. In re S.R.G., ___ N.C. App. ___, 671 S.E.2d 47 (1/20/09). http://www.aoc.state.nc.us/www/public/coa/opinions/2009/080954-1.htm Facts: The trial court adjudicated respondent’s child to be neglected and dependent and ordered respondent to take a variety of actions, including obtaining evaluations, receiving treatment for her drug addiction, having regular visits, finding independent housing, etc. After periods of respondent’s only partial compliance with the case plan and her continued use of drugs, the court changed the plan from reunification to a concurrent plan of reunification and adoption, and then to adoption. DSS filed a petition to terminate parental rights and after a hearing the trial court terminated respondent’s rights on the sole ground of willful abandonment for a period of six months before the filing of the petition. Held: Reversed and remanded 1. Much of the language in the trial court’s order related to factors that were relevant to the ground of willfully leaving the child in care for more than a year without making reasonable progress to correct conditions that led to the child’s placement. That ground was not alleged in the petition and the court could not adjudicate that ground. 2. Findings about respondent’s partial failure to comply with the case plan and her continued drug use did not support the ground of willful abandonment. Evidence showed that during the relevant sixmonth period respondent attended a court hearing, visited the child eleven times, and brought appropriate toys and clothes to the visits. 3. The evidence and findings failed to support a conclusion that respondent demonstrated a “purposeful, deliberative and manifest willful determination to forego all parental duties and relinquish all parental claims” to the child for a six-month period – the showing that is required for an adjudication of willful abandonment. • Reports of drug screen results and letter from Alcohol and Drug Services were admissible under business records exception to the hearsay rule after social worker testimony laid proper foundation. • The trial court may take judicial notice of prior proceedings and orders in a case and is presumed to disregard any incompetent evidence. In re S.D.J., ___ N.C. App. ___, 665 S.E.2d 818 (9/2/08). http://www.aoc.state.nc.us/www/public/coa/opinions/2008/080360-1.htm Facts: In addition to the jurisdiction issue described above, respondent argued that the trial court erred in 1. admitting into evidence reports of drug screen results and a letter from Alcohol and Drug Services over the objection of respondent’s attorney and 2. taking judicial notice of and basing findings of fact on prior orders in the case, including those that involved a lesser standard of proof than clear, cogent, and convincing evidence. Held: Affirmed. 1. The reports and letter were properly admitted as evidence under the business records exception to the hearsay rule, where a social worker testified that she had collected all but one of the samples and 13
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Page 4 and 5: 2. that respondent received mental
Page 6 and 7: 1. The trial court’s finding that
Page 8 and 9: • The trial court did not have su
Page 10 and 11: Guardian ad Litem for Parent In an
Page 14 and 15: sealed them and shipped them to the
Page 16 and 17: dismiss defendant’s claims for fa
Page 18 and 19: settlement or other recovery by the

Handout 1 - School of Government - University of North Carolina at ...

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