{ "id": 9081240, "name": "IN RE: DeANDREA MONIQUE HARDESTY, SHAKEENA LAKESE HUDSON, LADARRIUS LAQUAN HARDESTY", "name_abbreviation": "In re Hardesty", "decision_date": "2002-05-21", "docket_number": "No. COA01-825", "first_page": "380", "last_page": "386", "citations": [ { "type": "official", "cite": "150 N.C. App. 380" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "294 S.E.2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 385", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569668, 8569702, 8569641, 8569742, 8569722 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0385-02", "/nc/306/0385-03", "/nc/306/0385-01", "/nc/306/0385-05", "/nc/306/0385-04" ] }, { "cite": "287 S.E.2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "56 N.C. App. 142", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519902 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/56/0142-01" ] }, { "cite": "368 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "90 N.C. App. 423", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524867 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/90/0423-01" ] }, { "cite": "448 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "116 N.C. App. 403", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524252 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/116/0403-01" ] }, { "cite": "543 S.E.2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "opinion_index": 0 }, { "cite": "142 N.C. App. 607", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9442570 ], "weight": 3, "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/142/0607-01" ] }, { "cite": "328 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "35" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 239", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523922 ], "year": 1985, "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0239-01" ] }, { "cite": "316 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679227 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0101-01" ] }, { "cite": "424 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2506793, 2504075, 2504116, 2505493, 2506648 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0483-01", "/nc/332/0483-05", "/nc/332/0483-03", "/nc/332/0483-02", "/nc/332/0483-04" ] }, { "cite": "419 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "160" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 574", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313413 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/106/0574-01" ] }, { "cite": "355 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "85 N.C. App. 669", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170267 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/85/0669-01" ] } ], "analysis": { "cardinality": 660, "char_count": 14477, "ocr_confidence": 0.749, "pagerank": { "raw": 4.4576363347614664e-07, "percentile": 0.921633462028095 }, "sha256": "9e565519a789d860a68ad862663e0e38417e9a4477e5967e28ea677f0090ef24", "simhash": "1:0a89181238ca5cd7", "word_count": 2295 }, "last_updated": "2023-07-14T19:52:10.836930+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and TYSON concur." ], "parties": [ "IN RE: DeANDREA MONIQUE HARDESTY, SHAKEENA LAKESE HUDSON, LADARRIUS LAQUAN HARDESTY" ], "opinions": [ { "text": "THOMAS, Judge.\nLatasha Hardesty, respondent, appeals from orders which terminated her parental rights and denied visitation. For the reasons discussed herein, we reverse the trial court\u2019s termination order as to her son, Ladarrius Laquan Hardesty, but affirm as to DeAndrea Monique Hardesty and Shakeena Lakese Hudson.\nAmong the assignments of error, Hardesty argues the petition to terminate her parental rights to Ladarrius, born 20 April 1999, insufficiently alleged facts upon which the trial court could base a determination. We agree.\nPetitioner, the Craven County Department of Social Services (DSS), became involved with Hardesty in 1991 when there were several reports that she was neglecting her daughter, DeAndrea, born 5 April 1991. The allegations included inappropriate discipline and failure to provide proper care and supervision. However, no petition was filed.\nOn 26 February 1997, DeAndrea and her sister, Shakeena, born 14 April 1993, were adjudicated neglected when the trial court found, inter alia, that Hardesty beat Shakeena with a switch, leaving linear marks, and slapped DeAndrea on the side of her head. The children were subsequently placed in foster care by DSS.\nIn March 1997, Hardesty was involuntarily committed to Cherry Psychiatric Hospital and diagnosed with bipolar I disorder. Later in 1997 and into 1998, there was evidence that: (1) Hardesty exposed the children to sexual materials during visitations; (2) she missed visitations with the children; (3) she moved from place to place; (4) she advised the children to \u201cact out\u201d so the family could get back together; (5) Hardesty had other admissions to mental hospitals; and (6) she communicated threats or otherwise acted unlawfully. During this time, the children remained in foster care and in the custody of DSS.\nA new juvenile petition based on dependency was filed after Hardesty delivered a third child, Ladarrius. He was only allowed to be in her custody for one day. The day after his birth, Ladarrius was placed in DSS\u2019s custody.\nOn 25 June 1999, DSS filed petitions to terminate the parental rights of Hardesty to DeAndrea and Shakeena. The allegations included that Hardesty had: (1) willfully left DeAndrea and Shakeena in foster care or placement outside the home for more than twelve months without showing reasonable progress under the circumstances to correct the conditions that led to the removal of the children; (2) for the past year, willfully failed and refused to provide and pay for the care, support, and maintenance of the children while they were in DSS\u2019s care; (3) willfully abandoned the children for at least six months immediately preceding the filing of the petition; (4) failed to establish or maintain concern or responsibility for the children; (5) neglected the children; (6) failed to legitimate the children; and (7) failed to provide consistent care and financial support. Similar allegations were made against Gene Chapman, DeAndrea\u2019s father, and Jerome Hudson, Shakeena\u2019s father, in petitions to terminate their parental rights.\nDSS filed a shortened petition to terminate Hardesty\u2019s parental rights to Ladarrius, alleging: (a) Ladarrius was dependent and that there was a reasonable probability that Hardesty\u2019s incapability of properly caring for him would continue for the foreseeable future; (b) Ladarrius has not been legitimated; and (c) Ladarrius has spent his entire life in foster care.\nOn 29 December 2000, the trial court terminated the parental rights of Hardesty to all three children, Chapman\u2019s rights to DeAndrea, Hudson\u2019s rights to Shakeena, and any unknown father\u2019s rights to Ladarrius. Among its findings were that: (1) the children had not been legitimated; (2) the respective fathers had not provided financial support or consistent care and had not visited the children in at least one year; (3) Hardesty, who was diagnosed with bipolar disorder, does not have the ability to manage her own financial funds or properly parent her children; (4) Hardesty\u2019s mental condition will last for the foreseeable future; (5) Hardesty lived in various residences without securing a stable home; and (6) Hardesty\u2019s situation is no more stable than it was when the children were removed from her care.\nWe note at the outset that the trial court\u2019s ruling refers to Chapter 7B. However, since the petition for termination was filed prior to 1 July 1999, the applicable reference is to Chapter 7A.\nBy Hardesty\u2019s first assignment of error, she argues the trial court erred in denying her motion to dismiss as to Ladarrius because the petition did not state facts sufficient to warrant a determination that one or more grounds for terminating parenting rights existed. We agree.\nA motion to dismiss based on Rule 12(b)(6) of the North Carolina Rules of Civil Procedure is a challenge to a pleading, claiming it fails to state a claim upon which relief can be granted. N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) (1999). The question on a motion to dismiss is whether, as a matter of law, and taking the allegations in the complaint as true, the allegations are sufficient to state a claim upon which relief may be granted under any legal theory. Harris v. NCNB Nat\u2019l Bank, 85 N.C. App. 669, 355 S.E.2d 838 (1987).\nIn the instant case, the petition for the termination of parental rights to Ladarrius alleged, inter alia, that Hardesty and any unknown father were incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is dependent and there is a reasonable probability that such incapability will continue for the foreseeable future. The petition, however, did not allege any facts to delineate the incapacity. Section 7A-289.25 (now codified as section 7B-1104) of the North Carolina General Statutes requires that the petition state facts sufficient to warrant a determination that grounds for terminating parental rights exist. N.C. Gen. Stat. \u00a7 7A-289.25 (1998). It provides in pertinent part that:\nThe petition . . . shall set forth such of the following facts as are known; and with respect to the facts which are unknown the petitioner or movant shall so state:\n(6) Facts that are sufficient to warrant a determination that one or more of the grounds for terminating parental rights exist.\nN.C. Gen. Stat. \u00a7 7A-289.25 (1989). In In re Quevedo, 106 N.C. App. 574, 419 S.E.2d 158, appeal dismissed, 332 N.C. 483, 424 S.E.2d 397 (1992), this Court held that a \u201cpetitioners\u2019 bare recitation ... of the alleged statutory grounds for termination does not comply with the requirement in N.C. Gen. Stat. \u00a7 7A-289.25(6) that the petition state \u2018facts which are sufficient to warrant a determination that grounds exist to warrant termination.\u2019 \u201d Id. at 579, 419 S.E.2d at 160. (Emphasis in original). Unlike Quevedo, there was no earlier order containing the requisite facts incorporated into the petition.\nHere, petitioner merely used words similar to those in the statute setting out grounds for termination, alleged illegitimacy, and alleged that Ladarrius had spent his entire life in foster care. See N.C. Gen. Stat. \u00a7 7A-289.32 (1989). That is not sufficient. While there is no requirement that the factual allegations be exhaustive or extensive, they must put a party on notice as to what acts, omissions or conditions are at issue. The motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure should have been granted and we therefore reverse the trial court\u2019s termination of Hardesty\u2019s parental rights to Ladarrius.\nWe proceed now only with that part of Hardesty\u2019s assignments of error which concern DeAndrea and Shakeena.\nThere is a two-step process in a termination of parental rights proceeding. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984). In the adjudicatory stage, the trial court must establish that at least one ground for the termination of parental rights listed in N.C. Gen. Stat. \u00a7 7A-289.32 (now codified as section 7B-1111) exists. N.C. Gen. Stat. \u00a7 7A-289.30 (1998) (now codified as N.C. Gen. Stat. \u00a7 7B-1109). In this stage, the court\u2019s decision must be supported by clear, cogent and convincing evidence with the burden of proof on the petitioner. In re Swisher, 74 N.C. App. 239, 240, 328 S.E.2d 33, 35 (1985). Once one or more of the grounds for termination are established, the trial court must proceed to the dispositional stage where the best interests of the child are considered. There, the court shall issue an order terminating the parental rights unless it further determines that the best interests of the child require otherwise. N.C. Gen. Stat. \u00a7 7A-289.31(a) (1998) (now codified as section 7B-1110(a)). See also In re Blackburn, 142 N.C. App. 607, 543 S.E.2d 906 (2001); In re Carr, 116 N.C. App. 403, 448 S.E.2d 299 (1994).\nBy Hardesty\u2019s second and third assignments of error, she argues the trial court erred in concluding that grounds for the termination of her parental rights were proven by clear, cogent, and convincing evidence. We disagree.\nPetitioner presented evidence of: (a) DeAndrea\u2019s and Shakeena\u2019s multiple placements in foster homes; (b) Hardesty\u2019s severe mental problems, including diagnoses of bipolar disorder and histrionic personality disorder and history of \u201cbreakdowns\u201d; (c) Chapman\u2019s failure to legitimate DeAndrea; (d) Hardesty\u2019s frequent admissions to psychiatric hospitals; (e) Hardesty\u2019s criminal record; (f) Hudson\u2019s failure to legitimate Shakeena; (g) the children\u2019s previous adjudication of being neglected and dependent juveniles; (h) Hardesty\u2019s inability to provide a stable residence; (i) Hardesty ignoring the recommendations of her therapists; (j) Hardesty\u2019s inability to maintain stable employment; and (k) Hardesty\u2019s failure to manage her own finances.\nA clear, cogent and convincing evidentiary standard is a higher standard than preponderance of the evidence, but not as stringent as the requirement of proof beyond a reasonable doubt. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984). Here, we hold that grounds for the termination of Hardesty\u2019s parental rights were established by clear, cogent and convincing evidence. Hardesty\u2019s argument is rejected.\nBy Hardesty\u2019s fourth and fifth assignments of error, she argues the trial court erred in concluding that it was in the best interests of the children that her parental rights be terminated. We disagree.\nAfter one or more of the grounds for termination are established, the trial court must consider the best interests of the child. In re Blackburn, 142 N.C. App. 607, 543 S.E.2d 906 (2001). The trial court shall issue an order terminating the parental rights unless it further determines that the best interests of the child require otherwise. N.C. Gen. Stat. \u00a7 7A~289.31(a) (1998) (now codified as section 7B-1110(a)). See also In re Blackburn, 142 N.C. App. 607, 543 S.E.2d 906 (2001); In re Parker, 90 N.C. App. 423, 368 S.E.2d 879 (1988).\nThe children\u2019s best interests are paramount, not the rights of the parent. In re Smith, 56 N.C. App. 142, 287 S.E.2d 440, cert. denied, 306 N.C. 385, 294 S.E.2d 212 (1982). Here, the trial court had ample evidence upon which to base the decision of best interests and did not abuse its discretion in deciding that the best interests of DeAndrea and Shakeena required the termination of Hardesty\u2019s parental rights. We thus reject Hardesty\u2019s argument.\nBy Hardesty\u2019s final assignment of error, she argues the trial court erred in denying her motion for temporary visitation pending appeal. However, this assignment is taken as abandoned since no legal authority was cited in the body of Hardesty\u2019s argument. N.C.R. App. P. 28(b)(5).\nWe therefore affirm the trial court\u2019s terminations of Hardesty\u2019s parental rights to DeAndrea and Shakeena. We reverse the trial court\u2019s termination of Hardesty\u2019s parental rights to Ladarrius.\nAFFIRMED IN PART; REVERSED IN PART.\nJudges MARTIN and TYSON concur.", "type": "majority", "author": "THOMAS, Judge." } ], "attorneys": [ "McCotter, McAfee & Ashton, PLLC, by Rudolph A. Ashton, III and Terri W. Sharp for respondent-appellant.", "Bernard Bush for petitioner-appellee Craven County Department of Social Services.", "Daniel Potter for petitioner-appellee Guardian ad litem." ], "corrections": "", "head_matter": "IN RE: DeANDREA MONIQUE HARDESTY, SHAKEENA LAKESE HUDSON, LADARRIUS LAQUAN HARDESTY\nNo. COA01-825\n(Filed 21 May 2002)\n1. Termination of Parental Rights\u2014 mere use of words similar to statute for grounds of termination \u2014 sufficiency of notice\nThe trial court erred by denying respondent mother\u2019s motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) the petition to terminate respondent\u2019s parental rights to her son, because petitioner Department of Social Services\u2019s mere use of words similar to those in N.C.G.S. \u00a7 7A-289.32 setting out the grounds for termination, alleging illegitimacy and that the minor child spent his entire life in foster care, are insufficient to give respondent notice as to what acts, omissions, or conditions are at issue.\n2. Termination of Parental Rights\u2014 clear, cogent, and convincing evidence\nThe trial court did not err by terminating respondent mother\u2019s parental rights to her two daughters based on clear, cogent, and convincing evidence including: (1) the minor children\u2019s multiple placements in foster homes; (2) respondent\u2019s severe mental problems and frequent admissions to psychiatric hospitals; (3) respondent\u2019s criminal record; (4) failure to legitimate the two children; (5) the children\u2019s previous adjudication of being neglected and dependent juveniles; (6) respondent\u2019s inability to provide a stable residence; (7) respondent ignoring the recommendations of her therapists; (8) respondent\u2019s inability to maintain stable employment; and (9) respondent\u2019s failure to manage her own finances.\n3. Termination of Parental Rights\u2014 best interests of child\nThe trial court did not abuse its discretion by concluding that it was in the best interests of respondent mother\u2019s two daughters that respondent\u2019s parental rights be terminated.\n4. Appeal and Error\u2014 preservation of issues \u2014 failure to cite authority\nAlthough respondent mother contends the trial court erred by denying her motion for temporary visitation of her children pending appeal from the termination of her parental rights, this assignment of error is abandoned because no legal authority was cited in respondent\u2019s brief as required by N.C. R. App. P. 28(b)(5).\nAppeal by respondent from judgments entered 29 December 2000 and 15 March 2001 by Judge Jerry F. Waddell in Craven County District Court. Heard in the Court of Appeals 28 March 2002.\nMcCotter, McAfee & Ashton, PLLC, by Rudolph A. Ashton, III and Terri W. Sharp for respondent-appellant.\nBernard Bush for petitioner-appellee Craven County Department of Social Services.\nDaniel Potter for petitioner-appellee Guardian ad litem." }, "file_name": "0380-01", "first_page_order": 410, "last_page_order": 416 }