{ "id": 8157809, "name": "IN THE MATTER OF: T.M.H.", "name_abbreviation": "In re T.M.H.", "decision_date": "2007-10-16", "docket_number": "No. COA07-609", "first_page": "451", "last_page": "456", "citations": [ { "type": "official", "cite": "186 N.C. App. 451" } ], "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": "643 S.E.2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638237 ], "weight": 4, "year": 2007, "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0077-01" ] }, { "cite": "613 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632948 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "301" }, { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/se2d/613/0298-01" ] }, { "cite": "636 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637106 ], "year": 2006, "pin_cites": [ { "page": "792" } ], "opinion_index": 0, "case_paths": [ "/se2d/636/0787-01" ] }, { "cite": "509 S.E.2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "805" } ], "opinion_index": 0 }, { "cite": "132 N.C. 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App. 733", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8176550 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "736" }, { "page": "737-38" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0733-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "36-37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "577 S.E.2d 421", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "parenthetical": "requiring a showing of prejudice" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 533", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9191392 ], "year": 2003, "pin_cites": [ { "parenthetical": "requiring a showing of prejudice" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0533-01" ] }, { "cite": "170 N.C. App. 564", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9006115 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "569-70" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0564-01" ] }, { "cite": "360 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787934 ], "year": 2006, "pin_cites": [ { "page": "593-94" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0588-01" ] }, { "cite": "426 S.E.2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "436", "parenthetical": "applying former N.C.G.S. \u00a7 7A-289.25" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 285", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525216 ], "year": 1993, "pin_cites": [ { "page": "287-88", "parenthetical": "applying former N.C.G.S. \u00a7 7A-289.25" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0285-01" ] } ], "analysis": { "cardinality": 533, "char_count": 9682, "ocr_confidence": 0.715, "pagerank": { "raw": 1.7664522074583552e-07, "percentile": 0.7107651836072296 }, "sha256": "dd3f2b3baaf88154cd5d8845aacb894717a61dbdc7d6bd57815059979b54e46e", "simhash": "1:e6b9b17e246a2136", "word_count": 1585 }, "last_updated": "2023-07-14T19:31:40.090074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JACKSON and STROUD concur." ], "parties": [ "IN THE MATTER OF: T.M.H." ], "opinions": [ { "text": "STEELMAN, Judge.\nWhere the trial court failed to make findings of fact and conclusions of law concerning the willfulness of respondent\u2019s conduct, the order of the trial court must be vacated and remanded for further findings.\nOn 23 January 2006, mother filed a petition to terminate father\u2019s parental rights to T.M.H. The verified petition alleged that the father had failed to pay reasonable support or have any contact with the minor child for a continuous period of more than six months and failed to acknowledge birthdays, Christmas, or other holidays. The petition further alleged that mother was a resident of Cumberland County, North Carolina, and that respondent was the biological father of the child and a resident of Nash County, North Carolina. On 24 January 2006, a summmons issued. In an answer filed 4 October 2006, respondent admitted his paternity of the minor child and his residency in North Carolina but denied petitioner\u2019s substantive allegations regarding the grounds for termination.\nAfter a two-day hearing in December 2006, the trial court ordered that father\u2019s parental rights be terminated. On 27 February 2007, the court entered a written order reflecting, in relevant part, the following findings of fact:\n8. That the court finds by clear, cogent and convincing evidence that [T.B. and T.H.] are the parents of. . . T.M.H. born ... in Nash County....\n13. . . . [T]hat after [May 2001] father had little or no[] contact with the minor child.\n15. That the . . . father did not attempt to exercise [Christmas] visitation with [the paternal grandparents].\n16. That the father left Nash County [to live] in the Charlotte/Concord area thereafter and continues to reside there at this time.\n17. That subsequent to the entry of the child support order in 1998, the father paid . . . child support of approximately $1000.00 in 1999, approximately $1000.00 in 2000, $400.00 in 2004, $30.00 in 2005 and $1000.00 in 2006.\n18. That much of the payment for . . . child support [was made] in order to avoid being placed in jail for . . . failure to comply.\n19. That [the father] testified . . . that he had the ability to pay child support during that period of time but chose not to since he was not visit[ing] with the minor child during that period.\n20. That the father did not take the action necessary to enforce [his previously-entered] visitation order ....\n21. That [the father] made no real effort to maintain contact with . . . the minor child following the year 2001.\n24. That the father has not maintained a relationship with the minor child and the child knows the step father a[s] the emotional and father [sic] in his life.\n25. That the father ha[s], in fact, abandoned the minor child.\n26. That the father failed to pay adequate child support for the minor child although he had the ability to do so.\nThe order reflected the following two conclusions of law:\n1. That there are grounds for termination of [father\u2019s] parental rights.\n2. That it is in the child\u2019s best interest that [father\u2019s] parental rights be terminated.\nFather filed timely notice of appeal from the termination order.\nI. Jurisdictional Challenge\nIn his first argument, father contends that, because the petition failed to comply with N.C.G.S. \u00a7 7B-1104, the trial court was without subject matter jurisdiction over the case. We disagree.\nN.C.G.S. \u00a7 7B-1104 (2005) requires a verified petition to include: (1) the child\u2019s name, date and place of birth, as well as county of current residence; (2) petitioner\u2019s name and address, and status upon which she is authorized to file such a petition; (3) name and address of both parents; (4) facts sufficient, to warrant a determination that one or more grounds exist for terminating parental rights; and (5) a statement that the petition has not been filed to circumvent the Uniform Child-Custody Jurisdiction and Enforcement Act.\nOnly a violation of the verification requirement of N.C.G.S. \u00a7 7B-1104 has been held to be a jurisdictional defect per se. In re Triscari Children, 109 N.C. App. 285, 287-88, 426 S.E.2d 435, 436 (1993) (applying former N.C.G.S. \u00a7 7A-289.25); see also In re T.R.P., 360 N.C. 588, 593-94, 636 S.E.2d 787, 792 (2006).\nFather\u2019s reliance on In re Z.T.B., 170 N.C. App. 564, 613 S.E.2d 298 (2005) is misplaced. Although this Court held that the failure of the petitioner to set forth the information required by N.C.G.S. \u00a7 7B-1104 was reversible error, even absent a showing of prejudice, the decision was grounded in the Court\u2019s inability to follow the trial court\u2019s reasoning for its conclusions. Id. at 569-70, 613 S.E.2d at 301. The opinion distinguished the case from In re Humphrey, 156 N.C. App. 533, 577 S.E.2d 421 (2003) (requiring a showing of prejudice) as follows:\nIn Humphrey, this Court had all the facts available to it for review.... Humphrey is further distinguishable in that the defect in the petition in that case could be overcome by information contained on the face of the petition itself.\nIn re Z.T.B., 170 N.C. App. at 569-70, 613 S.E.2d at 301.\nWe find the petition filed in this cause sufficient to confer jurisdiction on the district court. Father asserts no prejudice arising from the alleged omissions, and we find none. The record as a whole discloses that father had access to all of the information required by the statute, and the petition was substantially compliant on its face.\nThis argument is without merit.\nIII. Appellate Review\nIn his second argument, father contends that, because the trial court failed to make specific findings of fact or to state in its conclusions of law that the father\u2019s actions were willful, the findings do not conclusively establish grounds for termination of parental rights. We agree.\nThis Court is bound by its prior decisions encompassing the same legal issue. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36-37 (1989). In In re D.R.B., 182 N.C. App. 733, 643 S.E.2d 77 (2007), this Court vacated a judgment that failed to articulate the specific grounds for termination, stating:\nFor this Court to exercise its appellate function, the trial court must enter sufficient findings of fact and conclusions of law to reveal the reasoning which led to the court\u2019s ultimate decision.\nId., 182 N.C. App. at 736, 643 S.E.2d at 79 (citing Coble v. Coble, 300 N.C. 708, 714, 268 S.E.2d 185, 190 (1980)). \u201cWithout an identified basis for the court\u2019s adjudication under [N.C.G.S.] \u00a7 7B-1109(e), we cannot effectively review the termination order.\u201d Id., 182 N.C. App. at 737-38, 643 S.E.2d at 80.\nAlthough the trial court\u2019s conclusions of law fail to identify which statutory grounds the court relied upon in terminating parental rights, petitioner suggests that there were two grounds: (1) failure to provide support under N.C.G.S. \u00a7 7B-llll(a)(4); and (2) abandonment under N.C.G.S. \u00a7 7B-llll(a)(7). One of the required elements that petitioner must demonstrate to establish each of these grounds is that respondent\u2019s conduct was \u201cwillful.\u201d The order before us contains no findings of willfulness. In the absence of a finding of willfulness, the trial court\u2019s order does not establish grounds for termination. See id.; In re Motherly, 149 N.C. App. 452, 455, 562 S.E.2d 15, 18 (2002).\nWe further note that the termination order was printed, signed, and filed on the ruled stationery of petitioner\u2019s trial attorney. It is important that our trial courts not only be impartial, but also have every appearance of impartiality. We strongly discourage judges from signing orders prepared on stationery bearing the name of any law firm.\nWe vacate the order and remand the matter to the trial court with instructions to make appropriate findings as to the willfulness of father\u2019s conduct, and then, if appropriate, to articulate conclusions of law that include the grounds under N.C.G.S. \u00a7 7B-llll(a) which form the basis for termination. The trial court may, in its discretion, receive additional evidence on remand. See Heath v. Heath, 132 N.C. App. 36, 38, 509 S.E.2d 804, 805 (1999). In light of our decision, we decline to address respondent\u2019s remaining assignments of error.\nAFFIRMED IN PART.\nVACATED AND REMANDED IN PART.\nJudges JACKSON and STROUD concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Robert E. Ewing, for respondent-appellant.", "Hedahl and Radtke Famly Law Center, by Debra J. Radke, for petitioner-appellee." ], "corrections": "", "head_matter": "IN THE MATTER OF: T.M.H.\nNo. COA07-609\n(Filed 16 October 2007)\n1. Termination of Parental Rights\u2014 subject matter jurisdiction \u2014 verified petition\nThe trial court had subject matter jurisdiction in a termination of parental rights case even though the verified petition failed to contain all of the information required by N.C.G.S. \u00a7 7B-1104, because: (1) the father asserted no prejudice arising from the alleged omissions, and none was found; and (2) the record as a whole disclosed the father had access to all of the information required by the statute, and the petition was substantially compliant on its face.\n2. Termination of Parental Rights\u2014 sufficiency of findings of fact \u2014 willfulness\nThe trial court erred in a termination of parental rights case by failing to make specific findings of fact or to state in its conclusions of law that the father\u2019s actions were willful, and the case is remanded to the trial court to make appropriate findings as to willfulness and, if appropriate, to articulate conclusions of law including grounds under N.C.G.S. \u00a7 7B-llll(a) forming the basis for termination. The trial court may, in its discretion, receive additional evidence on remand.\nAppeal by respondent father from order entered 27 February 2007 by Judge A. Elizabeth Keever in Cumberland County District Court. Heard in the Court of Appeals 4 September 2007.\nRobert E. Ewing, for respondent-appellant.\nHedahl and Radtke Famly Law Center, by Debra J. Radke, for petitioner-appellee." }, "file_name": "0451-01", "first_page_order": 481, "last_page_order": 486 }